MEMORIAL  OF  THE  HEIRS  OF  FAMILIES 
OF  THE  CHEROKEE  NATION 


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THE  LIBRARY  OF  THE 

UNIVERSITY  OF 

NORTH  CAROLINA 


THE  COLLECTION  OF 
NORTH  CAROLINIANA 

ENDOWED  BY 

JOHN  SPRUNT  HILL 
CLASS  OF  1889 


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UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


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FOR  USE  ONLY  IN 
THE  NORTH  CAROLINA  COLLECTION 


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30th  Congress,  [HO.  OF  REPS.]  Miscellaneous. 

1st  Scs.4o7i.  No.  8. 


CHEROKEE  INDIANS. 


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MEMORIAL 


THE  HEIRS  OF  FAMILIES  OF  THE  CHEROKEE  NATION  OF  INDIANS,  AND 
THE  CHILDREN  OF  THEIR  HEIRS  AND  REPRESENTATIVES, 


Redress  for  the  rvrongs  and  injuries  they  have  suffered  by  the  officers  of 
the  United  States  in  relation  to  cer'tain  reservations  and  pre-emptions  of 
lands,  and  indem?iities  for  improvenients  and  spoliations. 


January  4,  1S4S. 
Read,  and  referred  to  the  Committee  on  Indian  Affairs. 


To.  the  Jionorahle  the  Senators  and  members  of  the  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled: 

The  memorial  of  the  heads  of  famiUes  of  the  Cherolvee  nation  of  In- 
dians, and  their  children  and  their  heirs  and  representatives,  who,  under 
treaties  between  the  United  States  and  the  Cherokee  nation,  became  en- 
titled personally  to  certain  reservations  and  pre-emptions  of  lands,  and  in- 
demnities for  improvements  and  spoliations,  &c.,  most  respectfully  repre- 
sents to  yon  the  wrongs  and  injuries  which  have  been  done  to  them  by 
the  agency  of  the  Department  of  War,  and  the  instru'-nentality  of  the 
Commissioner  of  Indian  Affairs,  in  violation  of  the  gool  faith  of  the  Uni- 
ted States,  and  in  breach  of  the  faith  of  solemn  treaties  signed  and  con- 
cluded between  the  United  States  and  the  Cherokee  nation. 

Your  memorialists  are  far  from  intending  to  iippnte  to  the  Congress  of 
the  United  States,  or  the  several  Presidents  of  die  Unifed  States,  under 
whose  administrations,  respectively,  these  w)Ongs  were  begun  and  con- 
tinued, any  direct  participation  in,  or  knowing  assent  to,  these  wrongs 
and  oppressions  so  committed  by  their  suiordiuates.  But,  from  the  ex- 
amples of  the  past,  a  preservative  caution  .^n-  the  future  requires  that  your 
honorable  body  and  the  President  of  the  llnited  States  should  be  distinctly 
informed  of  the  wrongs  which  have  K^'cn  inflicted  on  your  memorialists, 
so  that  the  attention  of  the  Congress  and  the  head  of  the  executive  de- 
partment, and  of  the  Senate,  as  a  component  part  of  tlie  executive  depart- 
ment, may  be  awakened  to  exei't  the  powers  and  authorities  in  them 
respectively  vested  by  the  constitution  of  the  United  States,  so  that  the 
subordinate  officers  of  an  executive  department  may  not  in  future  use  the 
power  and  influence  of  the  executive  by  surreption,  and  that  the  evils 
which  have  been  caused  by  the  past  may  be  redressed. 
Tippin  &  Streeper,  printers. 


^^ 


2  Mis.  No.  8. 

By  the  treaty  between  the  United  Stales  and  the  Cherokee  nation  of 
Indians,  conckided  and  signed  at  Hopewell  on  the  28th  day  of  November, 
1785,  (Laws  U.  S.  vol.  l,Bioren's  edition,  p.  322,)  the  United  States  received 
the  Cherokees  "  into  the  favor  and  protection  of  the  United  States  of 
America,"  and  "the  said  Indians,  for  themselves  and  their  respective 
tribes  and  towns,  do  acknowledge  all  the  Cherokees  to  be  under  the  pro- 
tection of  the  United  States,  and  of  no  other  sovereign  whatsoever."  By 
the  4th  article  the  boundary  of  the  Cherokees  was  defined.  By  article  9, 
"  for  comfort  of  the  Indians,  and  for  the  prevention  of  injuries  and  oppres- 
sions," the  United  States  in  Congress  assembled  are  to  have  the  sole  right 
of  regulating  the  trade  Avith  the  Indians,  and  managing  their  affairs.  By 
article  12,  "that  the  Indians  may  have  fnll  confidence  in  the  justice  of 
the  United  States,  respecting  their  interests,  they  shall  liave  tlie  right  to 
send  a  deputy  of  their  choice,  whenever  they  think  fit,  to  Congress  " 

By  the  treaty  concluded  and  signed  at  Holston  July  2d,  1791,  (1st  vol. 
Laws  U.  S.,  Bioren's  edition,  p.  326,)  the  stipulations  respecting  protec- 
tion and  regulating  the  trade  were  repeated.  Article  4  defined  the  Chero- 
kee boundary,  so  as  to  cede  to  the  United  States  a  part  of  their  country,  in 
consideration  of  an  annuity. 

Article?,  "  the  United  States  solemnly  guaranty  to  the  Cherokee  nation 
all  their  lands  not  hereby  ceded." 

Article  14  relates  to  the  assistance  to  be  given  by  the  United  States  to 
the  Cherokees  to  become  herdsmen  and  cultivators  of  the  earth,  instead  of 
remaining  hunters. 

By  the  treaty  concluded  and  signed  2d  October,  1798,  near  Tellico, 
(Laws  U.  S.,  vol.  1,  p.  331,  Bioren's  edition,)  the  Cherokees  ceded  a  part 
of  their  country,  in  consideration  of  an  annuity,  and  of  "  the  guarantee  of 
the  remainder  of  their  country  forever,  as  made  and  contained  in  former 
treaties , ' ' 

Other  treaties  (and  cessions  of  lands)  between  the  United  States  and  the 
Cherokees  were  concluded  and  signed — 

1804,  Ociober24,  at  Tellico,  not  ratified  by  the  Senate  until  17th  May, 

1824,  (see  vol.  7,  p.  713,  of  Laws  U.  S.,  Bioren's  edition.) 

1805,  October,  at  TeUico,  (vol  1,  p.  335-337,  of  Bioren's  edition.) 

1806,  January  7th,  at  Washington,  (vol.  1,  p.  338,  of  Bioren's  edition.) 

1807,  Septembeillth,  at  Chickasaw  Old  Fields,  (vol  1,  p.  340,  of  Bio- 

ren's edition.) 

1816,  March  22d,  at  Washington,  (vol.  6,  p.  684,  of  Bioren's  edition 
Laws  U.  S.) 

1816,  September  14,  at  Chickasaw  council-house,  (Bioren's  edition 
LawsU.  S.,  vol.6,  p.  686.) 

By  the  treaty  between  the  United  States  and  the  Cherokee  nation  of  In- 
dians., concluded  and  signed  at  the  Cherokee  agency  on  the  Sth  July, 
1817,  (Laws  U.  S.,  vol.  6,  p.  7'02,  Bioren's  edition,)  it  was  recited,  that 
a  part  of  the  Cherokees  were  desirous  to  engage  in  agriculture  and  the  pur- 
suits of  civilized  life,  and  anothei.part  desired  to  remove  west  of  the 
Mississippi  on  vacant  lands  of  the  United  States;  that  the  United  States 
desired  to  satisfy  both  parties;  the  Ch^^irokees  were  willing  to  cede  to  the 
United  States  a  part  of  (heir  country  eas'i  of  the  Mississippi  river,  propor- 
tioned to  the  numbers  of  tlie  Cherokees  who  have  removed  and  are  about 
to  remove  west  on  the  Arkansas  river;  therefoie  the  Cherokee  nation  ceded 
to  the  United  States  two  parcels  of  their  lands  described  in  the  first  and 
second  articles  of  the  treaty. 


Mis,  No.  8,  3 

By  the  third  article  a  census  was  to  have  been  taken  during  the  month 
of  June,  ISIS,  of  the  whole  Cherokee  nation;  the  census  of  those  on  the 
east  side  of  the  Mississippi,  who  declare  their  intention  of  removal  west  to 
Arkansas,  to  be  taken  by  a  coniinissioner  appointed  hy  the  President  of 
the  United  States,  and  a  commissioner  appointed  by  the  Cherokees  on  the 
Arkansas  river;  and  the  census  of  the  Cherokees  on  the  Arkansas,  and 
those  removing  there,  and  who  at  that  time  declare  their  intention  of  re- 
moving there,  shall  be  taken  by  a  commissioner  appointed  by  the  United 
States,  and  one  appointed  by  the  Cherokees  on  the  east  side  of  the  Mis- 
sissippi river. 

By  article  4,  the  annuities  due  to  the  whole  Cherokee  nation  to  be  di- 
vided between  the  Cherokees  east  and  the  Cherokees  west,  in  proportion 
to  ihei-r  numbers,  agreeably  to  the  stipulations  in  the  third  article;  ''and  the 
lands  to  be  apportioned  and  surrendered  to  the  United  States,  agreeably  to 
the  aforesaid  enumeration,  as  the  proportionate  part,  agreeably  to  their  num- 
bers, to  which  those  who  have  removed,  and  who  declare  their  intention 
to  remove,  have  a  just  right,  including  these  with  the  lands  ceded  in  the 
first  and  second  articles  of  this  treaty," 

By  article  5,  the  United  States  agreed  to  give  the  Cherokees  west,  lands 
on  the  Arkansas  river,  at  the  mouth  of  Point  Removed ,  in  exchange,  acre  for 
acre,  for  the  lands  ceded  in  the  first  and  second  articles,  and  for  the  lands 
the  United  States  have^  or  may  hereafter  receive^  from  the  Cherokee  nation 
east,  as  the  just  proportion  due  that  part  of  the  nation  on  the  Arkansas 
river,  agreeably  to  their  numbers. 

By  article  7,  the  United  States  agreed  to  pay  for  all  improvements  which 
added  value  to  the  lands  ceded  to  the  United  States  within  the  boundaries 
expressed  in  the  first  and  second  articles,  to  be  valued,  &c. 

By  article  8,  it  is  agreed  and  declared  as  follows:  "  To  each  and  every 
head  of  any  Indian  family  residing  on  the  east  side  of  the  Mississippi 
river  on  the  lands  that  are  now,  or  may  hereafter  be,  surrendered  to  tlie 
United  Slates,  who  may  wish  to  become  citizens  of  the  States,  the  United 
States  do  agree  to  give  a  reservation  of  640  acres  of  land  in  a  square,  to 
include  their  improvements,"  in  which  they  shall  have  a  life  estate, 
with  ^'a  reversion  in  fee  simple  to  their  children,  reserving  co  the  widow  her 
dower,"  whose  names  are  to  be  ''filed  in  the  office  of  ^fie  Cherokee  agent, 
whose  office  is  to  be  kept  open  until  the  census  is  taken,  as  stipulated  in 
the  third  article  of  this  treaty:  Provided,  Tha^f  if  any  of  the  heads  of 
families  should  remove  therefrom,  the  right  to  revert  to  the  United  States: 
And  provided,  further,  That  the  land  which  may  be  reserved  under  this 
article  be  deducted  from  the  amount  which  has  been  ceded  under  the  first 
and  second  articles  of  this  treaty." 

Under  this  Sth  article,  heads' of  Iirdian  families,  designating  the  nimiber 
of  whom  the  family  \tas  composed,  (consisting  of  the  head,  the  wife 
where  there  was  one,  and  the  children  if  there  were  any,)  showing  the 
aggregate  of  the  familj'-,  were  duly  registered  according  'o  the  treaty  with 
the  Cherokee  agent  appoi-'Jted  by  the  United  States;  which  register  was 
filed,  and  is  now  remaining  in  the  office  of  Indian  Afliiirs,  whereby  they 
became  duly  entitled  to  reservations  under  the  said  treaty  of  ISIT. 

On  the  2Tth  February,  1S19,  another  treaty  was  made  at  the  city  of 
Washington,  (6th  vol.  Laws  U.  S.,  Bioren's  edition,  p.  T4S,)  by  which 
the  census  alluded  to  in  the  treaty  of  ISlT  (which  had  not  been  taken) 
was  dispensed  with,  and  the  Cherokees  ceded  an  additional  part  of  their 


4  Mis.  No.  8. 

country  to  the  United  States,  ])y  boundaries  Iherein  described,  upon  the 
terms  and  for  the  considerations  therein  at  large  appearing;  whereof,  these 
in  particular  are  pertinent  to  the  present  subject; 

By  article  1st,  the  United  States  accepted  the  lands  so  therein  described 
and  ceded  by  the  Cherokees,  "  in  fiill  satisfaction  of  all  claims  which  the 
United  Slates  have  on  them,  on  account  of  the  cession  to  a  part  of  their 
nation  who  have  or  may  hereafter  emigrate  to  Arkansas;  and  this  treaty  is 
d.  final  adjustment  of  that  of  the  eighth  of  July,  eighteen  hundred  and 
seventeen." 

By  article  2d,  the  stipulations  on  the  part  of  the  United  States,  contained 
in  the  treaty  of  1S17,  to  pa.y  for  all  the  improvements  of  those  Indians  who 
removed  to  Arkansas,  which  added  real  value  to  the  lands  within  the  terri- 
tory ceded  to  the  United  States,  were  renewed,  and  reservations  were  given 
to  each  head  of  an  Indian  family  residing  within  the  ceded  territory,  (those 
enrolled  for  Arkansas  excepted,)  who  chose  to  become  citizens  of  the 
United  States,  in  the  manner  stipulated  in  that  treaty,  as  at  large  appears 
in  the  second  and  third  articles. 

By  the  5th  article  the  United  States  stipulated,  "  that  all  white  people 
who  have  intruded,  or  may  hereafter  intrude,  upon  the  lands  reserved  for 
the  Cherokees,  shall  be  removed  by  the  United  States,  and  proceeded  against 
according  to  the  provisions  of  the  act  passed  thirtieth  of  March,  eighteen 
hundred  and  two,  entitled  'An  act  to  regulate  trade  and  intercourse  with 
the  Indian  tribes,  and  to  preserve  peace  on  the  frontiers.'  " — (Vol.  3, 
Bioren's  edition,  p.  4(32,  sec.  5.) 

On  Gth  May,  1828,  (vol.  8,  of  Bioren's  edition,  p.  1011 ,)  another  treaty 
was  concluded  and  signed  at  Washington,  betv\^een  tlie  United  States  and 
the  Cherokee  nation  west,  by  which,  among  other  things,  to  induce  the 
Cherokees  remaining  in  the  States  under  the  treaties  of  1817  and  1819  to 
remove  and  join  their  brethren  in  the  country  on  the  Arkansas  river  west 
of  the  Mississippi  river,  ceded  by  the  United  States  to  liie  Cherokee  nation, 
it  was  agreed,  "  on  the  part  of  the  United  States,  that  to  each  head  of 
a  Cherokee  family  now  residing  within  the  chartered  limits  of  Georgia,  or 
of  either  of  the  States  east  of  the  Mississippi,  who  may  desire  to  remove 
west,  shall  be  given,  on  enrolling  himself  for  emigration,  a  good  rifle," 
&.C.,  &c.;  "  also,  3  just  compensation  for  the  property  he  may  abandon, 
to  be  assessed  by  persons  to  be  appointed  by  the  President  of  the  United 
States.  The  cost  of  tlie  emigration  of  all  such  shall  be  borne  by  the 
United  States,"  &c  ,  &c.,  as  by  the  8th  article  of  that  treaty  at  large 
appears.  Under  this  treaty  some  of  the  heads  of  Indian  families  enrolled 
for  removal,  and  did  remove  to  Arkansas,  with  their  faniilies. 

The  white  people  intruded  on  the  lands  reserved  to  the  Cherokees,  as 
well  on  the  national  domain  of  the  Cherokees,  as  on  the  particular  tracts 
reserved  in  fee  simple  to  the  heads  of  families,  under  the  treaties  of  1817 
and  1819.  The  State  of  Georgia  passed  laws  to  deprive  the  Cherokees  of 
their  lands  and  of  their  domain;  to  sell  ah  the  lands  within  the  hmits  of 
the  State  of  Georgia,  as  of  the  public  domain,  to  extend  the  laws  of  Geor- 
gia over  the  lands  reserved  either  to  the  families  of  Cherokees,  or  to  the 
Cherokee  nation;  to  put  down  the  laws  and  customs  of  the  Cherokees, 
and  to  subject  their  persons  and  property  within  the  limits  claimed  by  the 
State  of  Georgia  to  the  laws  of  that  State,  as  will  be  seen  at  large  by  refer- 
ence to  the  several  statutes  enacted  by  the  legislature  of  Georgia;  copies 
whereof  are  deposited  and  remaining  in  the  office  of  the  Department  of 
State,  at  Washington. 


Mis.  No.  8.  a 

For  removal  of  the  white  people  who  had  obtruded,  in  numbers,  under 
the  laws  of  Georgia,  upon  the  lands  reserved  to  the  Cherokees,  application 
was  made  to  the  President  of  the  United  States  for  redress,  by  executing 
the  provision  contained  in  the  otli  article  of  the  treaty  of  1819,  and  the 
law  of  the  United  States  therein  referred  to  and  promised  to  be  enforced. 
Such  redress  was  not  granted;  neither  the  treaty,  nor  the  law  enacted  by 
the  Congress  in  that  behalf,  was  execttted. 

An  application  was  made  by  the  Cherokee  nation,  by  bill  in  eqttity,  to 
tlie  Supreme  Court  of  the  United  States,  against  the  State  of  Georgia,  for 
relief,  by  injunction  against  the  execution  of  the  acts  of  Georgia  of  1S2S 
and  1829,  as  contrary  to  the  constitution  of  the  United  States  and  the 
treaties  and  laws  of  the  United  States  made  in  pursuance  thereof,  and  for 
general  relief.  No  redress  v/as  granted  to  any  extent  by  the  Supreme 
Court,  because  tho  Cherokee  nation  was  not  a  foreign  State  in  the  sense 
in  which  that  term  is  '^  used  in  the  constitution  of  the  United  States,  and 
cannot  maintain  an  action  in  the  coiirts  of  the  United  States  against  a 
State ;  that  the  Cherokees  v/ere  a  domestic  dependent  nation,  in  a  state  of 
pupilage,  their  relation  to  the  United  States  resembling  that  of  a  Avard  to 
iiis  guardian." 

The  wrongs  and  grievances  detailed  in  that  bill,  for  which  the  Cherokees 
sougiit  redress,  are  but  too  true  and  notorious.  To  that  case,  decided  by 
the  Supreme  Court,  January  term,  1831,  reported  in  5  Peters,  p.  1  to  80, 
reference  is  made  for  the  particular  injuries  and  wrongs  then  done  and 
threatened  to  be  done  to  the  Cherokees,  and  for  the  reasoning  of  the  jus- 
tices of  the  Supreme  Court  as  to  the  rights  of  the  Cherokees,  the  wrongs 
done  them,  and  the  grounds  ttpon  which  the  court  declined  to  entertain 
jurisdiction. 

These  v/rongs  by  the  people  of  Georgia  were  followed  by  an  act  of  their 
legislature  of  December,  1833,  to  regulate  Indian  occupancy,  or  rather  to 
dispossess  the  Cherokees  of  their  houses,  lands,  improvements,  and  pos- 
sessions within  that  State. 

By  the  example  of  what  had  been  begun  and  acted  in  Georgia  against 
the  Cherokees,  others  of  the  States  passed  laws  to  sell  out,  as  of  the  pub- 
lic domain  of  the  State,  the  reservations  made  to  Cherokee  families  by  the 
treaties  of  1817  and  1819,  and  all  tlie  lands  of  the  Cherokees  within  the 
limits  of  their  respective  States,  in  consequence  of  these  laws  of  the 
several  States,  many  Cherokee  families  were  forcibly  dispossessed,  their 
houses  pulled  down  over  their  heads,  and  threats  of  personal  violence 
made,  if  they  did  not  depart  from  their  houses,  improvements,  and  lands. 
A  general  sense  of  insecurity  and  danger  pervaded  the  Cherokees,  as  well 
tiie  fam?lics  having  elected  to  become  citizens  of  the  United  States  and  re- 
siding on  their  lands  reserved  to  them  by  the  treaties  of  1817  and  1819,  as 
the  families  residing  on  the  unceded  lands  lying  vv^thin  the  limits  claimed 
by  tiie  States  respectively.  Agents  of  the  United  Stales  had  in  some  in- 
stances sold  the  lands  reserved  to  Indian  families. 

For  these  accumulated  and  accumulating  wrongs  the  Cherokees  again 
applied  to  the  President  of  the  United  States  for  fulfilment  of  the  5th  arti- 
cle of  the  treaty  of  1819,  by  removing  the  intruders,  according  to  the  stip- 
ulations of  the  treaty  and  the  law  of  1802.  By  the  agreement  and  ces- 
sion entered  into  on  (he  4th  April,  1802,  between  the  United  States  and 
Georgia,  the  federal  government  had  incurred  certain  ex|)ress  obligations  to 
ihe  State  of  Georgia,  recited  in  the  second,  third,  and  fourth  conditions  of 


6  Mis.  No.  8. 

the  cession  made  by  Georgia  to  the  United  States  of  the  JurlsdictioiT,-  soil. 
and  domain  of  the  lands  described  in  the  first  article,  and  particularly 
"that  the  United  States  shall,  at  their  own  expense,  extinguish,  for  the- 
use  of  Georgia,  as  early  as  the  same  can  be  peaceably  obtained  on  reason- 
able terms,  the  Indian  title  "  to  all  the  lands  within  the  State  of  Georgia. 
The  relation  between  the  federal  and  the  State  governments,  their  relative 
powers,  authorities,  and  rights  of  jurisdiction,  domain  and  sovereignty, 
seemed  to  impose  an  implied  obligation  and  trust  upon  the  federal  govern- 
ment to  exercise  the  treaty  making  power  for  the  welfare  of  the  States,  re- 
spectively^, by  extinguishing  the  Indian  title;  and  not  to  their  prejudice,  by 
divesting  them  of  their  jurisdiction  over  the  lands  lying  within  their  re- 
spective limits,  by  granting  them  out  to  individuals,  and  introducing  with- 
in the  State  another  governm.ent,  with  a  guarantee  on  the  part  of  the  Uni- 
ted States  of  protection  to  this  imperium  in  iwperio.  These  obligarions- 
express  and  implied,  to  the  several  States,  when  compared  with  the  treaties 
of  Hopewell  in  17SS,  and  Holston  of  1791,  and  of  ISIT  and  1819  with 
the  Cherokees,  seemed  to  have  placed  the  federal  government  in  the  atti- 
tude of  having  incurred  inconsistent  obligations  to  the  States  of  Georgia^ 
North  Carolina,  and  Tennessee  on  the  one  hand,  and  the  Cherokee  nation 
and  to  individuals  of  the  Cherokee  race  on  the  other.  Under  these  cir- 
cumstances, tlie  task  of  executing  the  treaty  of  1819  by  removing  the 
white  people  who  had  intruded,  under  color  of  the  laws  of  the  several 
States,  and  under  color  of  sales  by  the  United  States,  upon  the  lands  of 
the  Cherokees,  also  was  beset  with  difficulties  and  responsibilities. 

To  appease  the  Cherokees  by  inviting  them  to  another  treaty,  in  which 
provision  should  be  made  for  redressing  all  their  wrongs,  was  more  easy 
than  to  fulfil  the  treaties  which  had  been  made  with  the  Cherokees,  there- 
by to  arouse  the  people  and  the  powers  and  authorities  of  the  several 
States  who  had  granted  out  the  lands  as  parcels  of  their  domain,  contrary 
to  the  treaties  of  the  United  States  with  the  Cherokees. 

With  a  view  to  adjust  and  terminate  these  difficulties,  a  negotiation  Avas 
set  on  foot  in  February,  1835,  which  ended  in  the  treaty  of  New  Echota, 
signed  by  William  Carroll  and  J.  F.  Schermerhorn,  commissioners  on  the 
part  of  the  United  States,  and  by  Major  Ridge,  James  Foster,  Stand  Wa- 
tie,  John  Ridge,  and  others,  on  the  part  of  the  eastern  Cherokees,  and  by 
James  Rogers  and  John  Smith  on  the  part  of  the  western  Cherokees,  (voL 
9  Laws  U.  S.,  Bioren's  edition,  p.  1339;)  to  which  articles,  as  originally 
signed,  five  supplemental  articles  were  concluded  and  signed  on  the  first 
of  March,  1836,  ratified  by  the  Senate  with  amendments,  and  promulga- 
ted by  proclamation  of  the  President  of  tlie  United  States  of  the  23d 
May,  1836. 

The  compensations  and  indemnities,  considerations  and  inducements^ 
to  the  Cherokees,  by  the  United  States  promised,  will  appear  at  large  by 
reference  to  the  treaty. 

The  12th  article  promised  pre-emptions  of  160  acres  of  land  to  such 
heads  of  Cherokee  families  as  desired  to  reside  Avithin  the  States  of  North 
Carolina,  Tennessee  and  Alabama,  subject  to  their  laws. 

Article  13  provided  that  all  tlie  Cherokees,  their  heirs  or  descendn^its,  to 
whom  any  reservations  have  been  made  under  former  treaties,  and  who 
had  not  sold  or  conveyed  the  same,  and  which  reservations  have  been  sold 
by  the  United  States,  shall  be  entitled  to  compensation  at  the  present  valufc 
of  the  lands: 


Mis.  No.  8.  7 

All  reservations  not  sold  by  the  United  States,  to  which  the  families 
were  entitled,  were  confirmed: 

Reservees,  obliged  by  the  laws  of  the  States  to  abandon  them,  or  pur- 
chase them  from  the  State,  to  be  entitled  to  the  present  value  of  the  land 
abandoned,  or  to  the  purchase  paid,  as  the  case  may  be. 

Article  16  stipulated  that  the  Cherokees  should  have  two  years  from  the 
ratification  of  this  treaty  to  remove  to  their  new  homes;  during  which 
time  the  United  States  "  shall  protect  and  defend  them  in  their  possessions 
and  property,  and  free  use  and  occupation  of  the  same;"  and  persons 
''  dispossessed  of  their  improvements  and  houses,  and  for  which  no  grant 
has  actually  issued  previously  to  the  enactment  of  the  law  of  the  State  of 
Georgia  of  December,  1S33,  to  regulate  Indian  occupancy,  shall  be  again 
put  in  possession,  and  placed  in  the  same  situation  and  condition,  in  refer- 
ence to  the  laws  of  Georgia,  as  Indians  not  dispossessed;  and  if  this  is 
not  done,  and  the  people  are  left  unprotected,  then  the  United  States  shall 
pay  the  several  Cherokees  for  their  losses  and  damages  sustained  by  them 
in  consequence  thereof." 

By  the  first  supplemental  article  "all  the  pre-emption  rights  and  reser- 
vations provided  for  in  articles  twelve  and  thirteen  shall  be,  and  are  here- 
by relinquished,  and  declared  void." 

By  the  third  supplemental  article  the  sum  of  ,v>GOO,000  was  allowed  to 
the  Cherokees,  to  include  the  expense  of  removal,  &c.,  ''and  to  be  in  lieu 
of  the  said  i-eservations  and  pre-emptions,  and  of  the  sum  of  8300,000  for 
spoliations,"  &c.  "  This  sum  to  be  applied  and  distributed  agreeable  to 
the  provisions  of  the  said  treaty,"  etc. 

By  the  ITth  article  "  all  the  claims  provided  for  in  the  several  articles  of 
this  treaty  shall  be  examined  and  adjudicated  by  General  William  Carroll 
and  John  F.  Schermerhorn,  or  by  such  commissioners  as  shall  be  appoint- 
ed by  the  President  of  the  United  States  for  that  purpose;  and  their  deci- 
sion shall  be  final;  and  on  their  certificate  of  the  amount  due  the  several 
claimants,  they  shall  be  paid  by  the  United  States.  All  stipulations  in 
former  treaties  which  have  not  been  superseded  and  annulled  by  this,  shall 
continue  in  full  force  and  virtue." 

This  article  was  amended  in  the  Senate  by  striking  out  the  names  of 
the  commissioners,  General  William  Carroll  and  John  F.  Schermerhorn, 
and  giving  the  appointment  of  the  counnissioners  to  the  President  of  the 
United  States,  by  and  with  the  advice  and  consent  of  the  Senate. 

The  Senate  struck  out  article  20.  When  so  amended,  the  treaty  was 
declared  ratified  and  obligatory  by  proclamation  of  the  President  of  the 
United  States  on  23d  May,  1836,  without  submitting  the  amendments  to 
the  Cherokees  for  their  consent. 

The  treaty  of  New  Echota  upon  its  face  promises  compensations  and 
indemnities  to  the  Cherokees,  on  account  of  failures  of  the  United  States 
to  fulfil  stipulations  and  engagements  in  former  treaties.  Faithful  memo- 
rials of  past  events  but  too  well  attest  the  wrongs  and  injuries  the  Chero- 
kees have  endured  in  consequence  of  the  failure  of  the  United  States  to 
perform  their  engagements  to  them. 

By  treaties  between  the  United  States  and  the  Cherokees,  the  United 
States  have  acquired  cessions  of  all  the  lands  of  the  Cherokees  east  of  the 
Mississippi  river,  described  in  the  treaty  of  Hopewell;  tlie  Cherokees  have 
removed  west  to  the  river  Arkansas,  and  have  faithfully  performed  and 
fulfilled  their  engagements  to  the  United  States;  and  yielded  their  lands  in 


0  ,       Mis.  No.  8. 

Georgia,  North  Carolina,  Tennessee,  and  Alabama,  according  to  the  treaty 
of  New  Echota. 

Notwithstanding  eleven  years  and  more  have  elapsed  since  the  ratifica- 
tion of  the  treaty  of  New  Echota  was  proclaimed,  very  many  of  the  com- 
pensations and  indemnities  promised  by  that  treaty  are  yet  unpaid  and 
unperformed,  although  the  Cherokees  have  been  anxiously  seeking  their 
dues.  The  Cherokees  can  take  no  pleasure  in  a  recital  of  those  wrongs; 
but  have  an  earnest  desire,  and  abiding  confidence,  that  the  blot  which 
has  happened  by  the  past  will  be  effaced  and  purified  by  the  future;  that 
the  engagements  of  the  United  States  to  the  Cherokees,  in  the  several  ar- 
ticles of  the  treaty  of  New  Echota,  will  yet  be  interpreted  in  candor  and 
performed  in  good  faith. 

To  that  end  it  is  necessary  and  proper  that  the  past  shall  be  brought  to 
open  view,  examined,  repreliended,  and  amended. 

The  means  by  which  the  fulfilment  of  the  treaty  of  New  Echota,  on  the 
part  of  the  United  States,  has  been  delayed  and  hindered  by  the  executive 
department,  may  be  comprised  under  the  following  heads: 

1.  The  powers  assumed  and  exercised  by  the  Commissioner  of  Indian 
Affairs  in  issuing  instructions  and  directions  to  the  court  of  commissions 
as  to  the  principles  upon  which  they  should  adjudicate,  and  how  they 
should  not  adjudicate;  instructing  them  that  whole  classes  of  claims  should 
be  rejected,  and  in  other  respects  dictating  to  the  commissioners;  v/hich 
assumption  of  powers,  and  instructions  from  time  to  time  given,  were  ille- 
gal, insidious,  contrary  to  the  law  of  nations,  a  breach  of  faith,  and  in 
fraud  of  the  treaty. 

2.  The  Commissioner  of  Indian  Affairs  instructed  the  board  of  com- 
missioners to  close  their  session,  and  dissolved  the  first  board  on  the  5th 
March,  1839;  assumed  upon  himself  the  power  to  review  and  reverse  the 
decisions  of  the  court  of  commissioners;  to  grant  or  reject  claims;  refused 
to  pay  the  certificates  of  the  connuissioners;  and  directed  the  commissioners 
not  to  issue  certificates  until  further  directions. 

3.  The  first  board  was  dissolved  by  the  Commissioner  of  Indian  Affairs; 
the  second  board  was  appointed  November,  1842,  and  dissolved  by  the 
President  of  the  United  States  on  the  iTth  January,  1844,  by  removing 
Messrs.  Eaton  and  Hubley  without  just  cause;  the  tliird  board  was  com- 
missioned in  June,  1844,  and  was  dissolved  17th  June,  1845;  the  fourth 
board  was  commissioned  in  July,  1846,  and  was  dissolved  in  July,  1847. 

4.  Ail  commissions  were  ''during  the  pleasure  of  the  President,"  by 
which,  and  the  aforementioned  causes,  the  independent  tenure  of  office 
ordained  by  the  treaty  of  New  Echota  has  been  destroyed,  and  the  se- 
curity for  the  claimants  provided  by  the  I7th  article  has  been  impaired. 

5.  The  decisions  by  the  commissioners  in  various  cases  not  suscep- 
tible of  doubt  are  so  palpably  erroneous  as  to  warrant  the  inference  that 
ihese  were  premeditated  wrongs,  superinduced  by  the  wrongful  instruc- 
thns  of  the  Commissioner  of  Indian  Affairs. 

Between  the  dissolution  of  the  first  board  and  the  session  of  the  second, 
aa  interval  of  three  years  and  nine  months  elapsed;  between  the  dissolu- 
tioii  of  the  second  board  and  the  session  of  the  third,  there  was  an  interval 
of  six  months;  between  the  dissolution  of  the  third  board  and  the  session 
.of  the  fourth,  there  was  an  interval  of  thirteen  montlis.  That  board  was 
•dis&oived  in  July,  1847;  so  that  there  is  no  existing  commission.     Claims, 


Mis.  No.  8.  9 

witli  the  evidence  in  support  of  them,  have  been  forwarded  since  the  dis- 
sokition  of  tfce  last  board. 

Whatever  of  harshness  may  appear  in  the  foregoing  allegations  of  the 
obstructions  which  have  been  thrown  in  the  way  of  the  Cherokees  in  their 
efforts  to  obtain  their  dues,  under  the  treaty  of  New  Echota,  it  is  justified 
by  truth,  sustained  by  documents  and  written  evidences  of  undoubted 
authenticity,  by  the  transcript  of  letters  from  the  office  of  Indian  affairs,  com- 
municated by  the  Secretary  of  the  Department  of  War  to  Congress,  in 
obedience  to  resolutions  of  the  one  or  of  the  other  house  of  Congress, 
and  by  records  and  evidences  of  the  decisions  of  the  commissioners,  filed 
in  the  office  of  Indian  affairs. 

As  a  preface  to  the  instructions  to  die  commissioners  which  issued  from 
time  to  time  from  the  office  of  the  Conmiissioner  of  Indian  Affairs,  we 
will  bjing  to  mind  certain  maxims  or  general  principles  respected  by  all 
nations  as  of  universal  obligation: 

1 .  Neither  the  one  nor  the  other  of  the  interested  contracting  powers  has 
a  right  to  interpret  the  treary  at  his  pleasure.  For  if  I  am  allowed  to  ex- 
plain my  promises  as  I  please,  I  may  render  them  vain  and  illusive  by 
giving  them  a  sense  different  from  that  in  which  they  were  presented  and 
accepted.  (Vattel,  bt-ok  ii,  chapter  xvii,  page  227,  sec.  265;  and  the  like 
by  Grotius,  book  ii,  chaper  xvi,  par.  1,  page  352.) 

2.  If  he  who  can  and  ouglit  to  have  explained  himself  clearly  and 
plainly  lias  not  done  so,  it  is  worse  for  liini;  he  cannot  be  allowed  to  intro- 
duce subsequent  restrictions  which  he  has  not  expressed.  This  is  a  rule 
proper  to  repel  and  cut  off  all  chicanery.  The  ecjuity  of  this  rule  is  visible; 
and  its  necessity  not  less  evident.     (Yattel,  page  226,  sec.  264.) 

3.  The  faith  of  treaties  forms  all  the  security  of  the  contracting  parties. 
This  faith  is  not  less  wounded  by  a  refusal  to  receive  an  evidently  right 
interpretation,  than  by  an  open  infraction.  It  is  the  same  injustice,  the 
same  infidelity;  and  for  one  of  them  to  involve  himself  in  the  subtleties  of 
fraud,  is  not  less  odious.     (Vattel,  page  22S,  sec.  269.) 

4.  It  is  a  gross  c|uibble  to  fix  a  particular  sense  to  a  word  in  order  to 
elude  the  true  sense  of  the  entire  expression.  When  we  manifestly  see 
what  is  the  sense  that  agrees  with  the  intention  of  the  contracting  powers, 
it  is  not  permitied  to  turn  their  words  to  a  contrary  meaning.  The  inten- 
tion sufficiently  shown,  furnishes  the  true  matter  of  the  convention  of 
what  is  promised  and  accepted,  demanded  and  granted.  (Vattel,  page 
230,  sec.  273,  274.) 

5.  The  contracting  powers  are  under  an  obligation  to  express  themselves 
in  su^'h  a  manner  as  they  may  mutually  understand  each  other.  If  this 
was  not  the  case,  their  contract  could  be  nothing  but  either  sport  or  a  snare. 
They  should  employ  the  words  in  tlie  sense  which  use  and  custom  have 
given  them. 

Technical  terms,  or  terms  proper  to  the  arts  and  sciences,  ought  com- 
monly to  be  interpreted  according  to  the  definition  given  by  the  masters 
of  the  art.  Commonly  it  should  be  so,  but  this  rule  is  not  so  absolute 
that  we  ought  not  to  deviate  from  it  when  we  have  good  reasons  to  do  it; 
as,  f  n-  instance,  when  it  appears  that  he  who  speaks  in  a  treaty,  or  in  any 
oihcr  public  writing,  did  not  understand  the  art  or  science;  that  he  knew 
not  its  force  as  a  technical  word;  that  he  has  employed  it  in  a  vulgar  sense, 
ccc.  If  terms  of  art,  or  others,  relate  to  things  that  admit  of  dilferent  de- 
grees, we  ought  not  scrupulously  to  attach  ourselves  to  definitions;  but 


10  Mis.  No.  8. 

rather  to  take  the  terms  in  a  sense  agreeable  to  the  discourse  of  which  it  is 
a  part.  (Vattel,  book  ii,  ch.  xvii,  sec.  271^  276^  277,  j^.  229-231; 
Grotius,  book  ii;  ch.  xvi,  par.  2,  p.  353.) 

6.  There  is  not  any  language  that  has  not  words  which  signify  two  or 
many  different  things  or  phrases  susceptible  of  more  than  one  sense. 
Thence  arise  mistakes  in  discourse.  Contracting  parties  ought  to  avoid 
them.  To  employ  them  with  design,  in  order  to  elude  engagements,  (or  to 
entrap,)  is  a  real  perfidy,  since  the  faith  of  treaties  obliges  the  contracting 
parties  to  express  their  intentions  clearly.     (Vattel,  p.  232,  sec.  279.) 

7.  Every  interpretation  that  leads  to  an  absurdity  ought  to  be  rejected: 
we  should  not  give  to  any  instrument  of  writing  a  sense  from  which  fol- 
lows anything  absurd. 

The  interpretation  that  renders  a  treaty  null  and  without  effect  cannot  be 
admitted ;  for  it  is  a  kind  of  absurdity  to  suppose  that  the  terms  of  the  treaty 
(or  an  article  of  a  treaty)  should  be  reduced  to  nothing,  (Vattel,  book  ii, 
chap,  xvii,  sec.  282,  283,  pp.  233,  234;  Grotius,  book  ii,  chap,  xvi,  par. 
6,  p.  355.) 

8.  "  Frequently,  in  order  to  abridge,  people  express  imperfectly  and  with 
some  obscurity  what  they  suppose  is  sufficiently  elucidated  by  the  things 
that  precede  it,  or  even  what  they  propose  to  explain  afterwards;  and  be- 
sides, the  expressions  have  a  force  and  sometimes  even  a  different  signifi- 
cation, according  to  the  occasion,  their  connexion,  and  relation  to  other 
words."  The  connexion  and  relation  of  things  themselves  serve  also  to 
establish  the  true  sense  of  a  treaty.  The  interpretation  ought  to  be  made 
in  such  a  manner  that  all  the  parts  appear  consonant  to  each  other,  that 
what  follows  agrees  with  what  went  before;  for  it  is  presumed  that  the  au- 
thors of  the  treaty  had  a  uniform  steady  train  of  thought;  that  they  have 
intended  to  explain  one  thing  by  another;  that  one  and  the  same  spirit 
reigns  throughout  the  treaty.  Therefore  we  ought  to  consider  the  whole 
discourse  together,  in  order  perfectly  to  understand  the  sense  of  it,  and  to 
give  to  each  expression  not  so  much  the  signification  it  may  receive  in 
itself,  as  that  which  it  ought  to  have  from  the  thread  and  spirit  of  the  dis- 
course. It  is  the  office  of  a  good  expositor  to  make  construction  on  all  the 
parts  together,  and  not  of  one  part  only  by  itself:  nemo  enim  aliquam  par- 
tem recte  intelhgeri  possit,  antequam  totum  iterum  atque  iterum  perlegerit. 
(Vattel,  p.  235,  sec.  285 — Lincoln  College's  case,  3  Co.  59,  (b;)  Grodus, 
book  ii,  chap,  xvi,  par.  iv,  sec.  2;  par.  vii,  pp.  354,  355.) 

9.  As  two  articles  in  the  same  treaty  may  relate  to  each  other,  two  dif- 
ferent treaties  may  do  so  too,  and  in  such  case  are  to  be  explained  by  one 
another.     (Vattel,  p.  236,  sec.  286.) 

10.  The  reason  of  the  law,  treaty,  or  promise,  does  not  only  serve  to  ex- 
plain the  obscure  or  equivocal  terms,  but  also  to  extend  or  to  confine  the 
dispositions  independent  of  the  terms  to  the  views  and  intention  of  the  con- 
tracting powers,  rather  than  to  their  words;  the  language  invented  to  explain 
the  will  ought  not  to  hinder  its  eftect.  Good  faith  affixes  itself  to  the  in- 
tention; fraud  insists  on  the  words  when  it  thinks  it  can  conceal  itself  under 
them.  The  reason  of  the  law  or  treaty  ought  to  have  great  attention,  as 
one  of  the  most  certain  means  to  establish  the  true  sense,  and  to  explain 
an  obscure,  equivocal,  and  undetermined  point.  (Vattel,  sec,  287,  290, 
291,  pp.  237,  239;  Grotius,  book  ii,  chap,  xvi,  par.  8,  p.  355;  Stowell  v. 
Zouch — Plowden,  363;  Eyston  v.  Studd — Plowden,  205.) 


Mis.  No.  8.  11 

To  these  general  maxims,  principles,  and  rules,  quoted  from  high  au- 
thorities, we  add  these  other  axioms  or  self-evident  truths: 

11.  That  in  a  treaty  each  several  article  is  the  consideration  of  all  the 
other  articles,  and  all  the  articles  together  make  the  consideration  of  each 
particular  article. 

12.  That  the  acts  of  the  Commissioner  of  Indian  Affairs  done  in  his  of- 
ficial character,  reported  to  the  Congress  and  never  disavowed  hy  the  Presi- 
dent of  the  United  States  or  Secretary  of  the  Department  of  War,  are 
to  be  taken  to  be  the  acts  of  the  Executive  power,  although  the  President 
may  not  have  given  his  particular  order  or  assent  to  such  acts. 

13.  The  seventeenth  article  of  the  treaty  of  New  Echota  provided  for  a 
commission,  for  a  judicial  tribunal,  for  judges,  before  whom  all  the  claims 
arising  under  or  provided  for  in  the  several  articles  of  this  treaty  are  to  be 
"  examined  and  adjudicated,"  and  "  their  d,eeision  shall  be  final." 

14.  That  the  decisions  of  these  judges  of  this  tribunal,  erected  and  con- 
stituted by  the  mutual  concurring  wills  and  agreement  of  the  twocontract- 
ing  nations,  were  not  subject  to  be  revised  or  reversed  by  any  other  tribunal, 
officer,  or  authority  exercised  under  the  United  States,  one  of  the  interested 
contracting  powers,  and  an  exercise  of  such  a  power  by  the  United  States 
would  be  an  arbitrary  assumption  against  right,  and  a  breach  of  the  faith  of 
the  treaty. 

15.  A  power  and  authority  in  one  of  the  parties  to  judicial  proceedings, 
directly  interested  in  the  decisions  to  be  given,  to  tamper  with  the  judges 
or  jurors  to  bend  them  to  his  will,  or  by  his  letters  missive  to  instruct  them 
what  decisions  they  shall  make,  that  whole  classes  of  cases  are  to  be  deci- 
ded in  his  favor;  and  as  to  others,  that  they  must  defer  their  decisions  or 
evidences  thereof,  until  he  is  ready  to  pay  or  until  further  instructed,  is 
against  the  rudiments  of  natural  justice,  repugnant  to  the  common  sense 
and  feelings  of  all  niankir.d.  Christians  and  barbarians,  and  hostile  to  the 
genius  and  spirit  of  the  State  and  federal  institutions.  That  such  a  power 
has  been  exercised  for  the  government,  and  not  for  individual  personal  ad- 
vantage, is  a  difference  in  the  manner  only  which  does  not  absolve,  but 
aggravates  the  injustice.    "Fraus  enim  adstringit,  non  dissolvit  perjuriimi." 

The  instructions  which  had  issued  from  time  to  time,  have  been  drawn 
forth  by  parts  and  parcels.  They  were  concealed  from  the  claimants,  and 
the  whole  extent  of  the  instructions  issued  from  the  office  of  Indian  Affairs 
to  the  commissioners  was  not  developed  until  January  14,  1847,  when  the 
Secretary  of  War  answered  a  resolution  of  the  Senate,  drawn  in  such  com- 
prehensive terms,  calling  fir  the  instructions,  as  to  leave  no  room  for  a  play 
upon  the  letter  of  the  call.  That  communication  (of  January,  I S47)  brought 
to  light  various  instructions,  commencing  as  far  back  as  June  20,  ISoT, 
not  before  communicated. 

By  letter  of  January  24,  1S3S,  Mr.  Harris  thns  instructed  the  commis- 
sioners: "  It  has  been  supposed  in  this  office  that  all  valid  claims  for  im- 
provements abandoned  by  the  Cherokees  under  the  treaty  of  6th  May,  1828, 
with  the  portion  of  the  nation  west,  have  been  paid  for,  or  otherwise  satis- 
factorily accounted  for.  If  any  such  shall  be  laid  before  you,  you  will  pro- 
ceed to  examine  them,  and  receive  all  the  evidence  in  their  support,  and 
forward  the  whole  to  this  office  for  the  purpose  of  comparing  them  with  the 
valuations  and  pay  rolls  here,  before  any  order  will  be  made  in  relation  to 
payment." 

This  mode  of  trial  by  withdrawing  the  evidence  from  the  court,  and 


12  Mis.  No.  8. 

transmitting  it  tx)  an  executive  officer  for  further  testimony  to  be  taken  and 
determined  on  by  him,  and  not  produced  before  the  court,  is  a  proceeding 
not  warranted  by  any  principle,  nor  accordant  with  the  17th  article  of  the 
treaty. 

On  the  Sth  February,  1S3S,  Mr.  Harris  wrote  to  the  commissioners:  "It 
is  the  opinion  of  the  department  proper  that  you  should  establish  a  rule 
not  to  review  any  case  that  has  once  been  decided." 

Upon  these  letters  the  interference  by  this  executive  officer  with  the  du- 
ties of  the  court  of  commissioners  is  apparent.  At  present  it  is  sufficient 
to  say  that  the  rule  directed  to  be  established,  "not  to  review  any  case  that 
has  been  once  decided,"  goes  back  to  the  rude  ages  and  crude  notions  ot 
proceedings  in  courts  of  law,  when  remedies  by  trials  by  battle,  and  attain- 
ing jurors  for  false  verdicts  prevailed;  when,  by  an  intolerable  strictness  in 
grantmg  new  trials,  persons  were  driven  into  courts  of  equity  for  relief  by 
decrees  for  new  trials  at  law  for  the  purposes  of  justice.  For  two  centuries 
the  practice  of  new  trials  at  law,  and  reliearings  in  equity  and  bills  of  re- 
view, has  prevailed  as  necessary  to  the  purposes  of  justice.  In  the  case  ot 
Bright  V.  Eynon,  (1  Burrow,  p.  393,)  Lord  Mansfield  declared,  "It  is  abso- 
lutely necessary  to  justice  that  there  should  on  many  occasions  be  oportu- 
nities  of  reconsidering  thecause  byanew  trial."  "Of  late  years  the  courts 
of  law  have  gone  more  liberally  into  granting  new  trials,  according  to  the 
circumstances  of  the  respective  cases.  And  the  rule  laid  down  by  Lord 
Parker,  in  the  case  of  the  Queen  against  the  corporation  of  Helston,  12 
Ann,  (Lucas's  Rep.,  p.  202,)  seems  to  be  the  best  general  rule  that  can  be 
laid  down  on  the  subject,  viz:  doing  justice  to  the  party,  or,  in  other  words^ 
attaining  the  justice  of  the  case." 

On  the  19th  June,  1S38,  Mr.  C.  A.  Harris,  Commissioner  of  Indian  Af- 
, fairs,  addressed  a  letter  to  the  commissioners  in  these  words  and  figures: 
"  Gentlemen,  I  am  directed  by  the  Secretary  of  War  to  instruct  you  that, 
in  his  judgment,  no  payments  whatever  should  be  made  on  account  of  res- 
ervation claims  under  the  treaties  of  1817  and  1819,  either  to  the  Indian 
reservees  or  to  their  assignees.  But  you  are  to  proceed  in  and  to  complete 
the  examination  of  these  claims,  and  to  report  each  case  and  the  testimony 
bearing  upon  it  to  this  department.  If,  as  there  seems  to  be  reason  to  ap- 
prehend, more  extensive  powers  will  be  required  to  enable  the  agents  of 
the  government  to  arrive  at  the  truth,  such  measures  as  m.ay  seem  proper 
will  be  adopted." 

By  this  mandate  from  the  office  of  the  Commissioner  of  Indian  Affairs, 
by  the  direction  and  authority  of  the  Secretary  of  War,  (as  the  writer  stated,) 
the  commissioners,  the  judges,  appointed  by  virtue  of  the  17th  article  of 
the  treaty  of  Isevj  Echota,  were  reduced  from  their  high  estate  as  arbiters 
appointed  under  a  treaty  of  the  two  contracting  nations,  transformed  into  ser- 
vants and  handmaids  to  the  Commissioner  of  Indian  Affairs,  stripped  of 
their  judicial  robes,  and  distaffs  were  put  into  their  hands,  with  orders  to 
spin  for  the  use  of  the  office  of  Indian  aflairs! 

From  the  condition  of  tlie  two  contracting  powers,  the  power,  wealth,  and 
influence  of  the  one  party,  and  the  comparative  weakness  and  poverty  of 
the  other  party;  from  the  high  confidence  reposed  by  the  Cheroteesin  giv- 
ing to  the  United  States  the  appointment  of  tiie  judges,  without  any  voice  by 
any  senator,  representative,  or  delegate  elected  on  the  part  of  the  Chero- 
kees;  and  from  the  nature  of  the  duties  to  be  performed  by  the  persons  to 
be  appointed,  it  was  but  a  reasonable  expectation  on  the  part  of  the  Chero- 


Mis.  No.  8.  13 

kees,  and  a  moral  diitv  incumbent  on  the  appointing  power  of  the  United 
States,  to  use  reasonable  circumspection  and  good  faith  to  select  as  the  ar- 
bitrators persons  of  integrity,  firmness  of  purpose,  high  intellectual  capacity 
and  fitness;  ^'  liberos  et  legales  homines  omni  exceptione  majores."  And 
when  appointed,  the  United  States  were  bound  by  the  faith  of  treaties,  which 
is  declared  sacred  by  the  lawof  naUons,  that  they  should  have  been  left  free 
to  adjudicate  according  to  their  unbiassed  judgments  of  the  sense  and  mean- 
ing of  the  treaty. 

The  powers  so  assumed  by  the  Commissioner  of  Indian  Affairs  to  impose 
authoritatively  his  construction  of  the  treaty,  and  an  interpretation  so  man- 
ifestly wrong,  and  to  revise  and  reverse  the  decisions  of  the  commissioners, 
were,  according  to  axiom  12,  before  stated,  the  acts  of  the  Executive  of  the 
United  States,  and  were  contrary  to  the  axioms  1,  3,  14,  and  \5,  before 
stated,  and  a  breach  of  the  faith  of  the  treaty. 

By  the  letter  of  the  Commissioner  of  Indian  Affairs  of  the  17th  January, 
1839,  to  the  commissioners,  Messrs.  Kennedy,  Wilson,  and  Liddell,  they 
were  instructed  to  terminate  their  session  and  transmit  their  registers,  doc- 
imients  and  papers  to  the  office  of  Indian  aff'airs,  whereby  the  commission 
was  by  that  order  broken  up  and  dissolved  on  the  fifth  day  of  March,  1S39, 
before  the  business  of  the  commission  under  the  17th  article  of  the  treaty  of 
New Echota  was  completed.  (See rep.  No.  391,  •2Sth  Cong.,  Istsess.,  March 
29,  1844— letter  C,  p.  9;  and  report  of  T.  H.  Crawford— I,  page  38.) 

Thus,  the  court  of  commissioners  constituted  under  the  17th  article  of 
the  treaty  was  broken  and  dissolved  by  the  act  of  the  officer  of  the  United 
States,  the  one  contracting  interested  party,  without  the  consent  of  the 
other  contracting  party.  This  was  a  wrong,  a  violation  of  the  faith  of  the 
treaty.  The  Cherokee  claimants  were  compelled  to  apply  to  the  Congress 
to  revive  the  court  of  commissioners;  and  the  first  session  of  the  new  court 
of  commissioners  commenced  in  December,  1843,  about  three  years  and 
nine  months  after  the  Commissioner  of  Indian  AlTairs  had  broken  up  the 
former. 

Before  the  session  of  the  new  court,  consisting  of  Messrs.  Eaton  and 
Hubley,  (the  latter  appointed  in  place  of  Mr.  Iredell,  who  refused  to  ac- 
cept,) the  Commissioner  of  Indian  Affairs  issued  his  instructions  to  these 
commissioners  by  letter  dated  September  28,  1842,  (Doc.  No.  391,  p.  17, 
House  of  Representatives,  28th  Congress,  1st  session,  vol.  2  of  Reps.  1843, 
1844.)  Oat  of  the  many  instructions  therein,  the  following  are  highly  im- 
proper, amongst  others: 

1.  "The  ]7th  article  makes  the  decisions  of  the  commissioners  final 
that  have  been  already  liad,  and  reported  by  the  former  board  to  this  de- 
partment. Even  the  Executive  cannot  overrule  them  where  they  had  juris- 
diction; and  if  they  have  none,  you  cannot  possess  it.  You  are  tlierefore 
instructed  that  no  case  which  has  been  adjudicated  by  the  former  i)oard  is 
open  to  your  examination;  and  one  of  the  great  objects  in  fin-nishing  you 
with  its  records,  is  to  enable  you  to  detect  at  once  any  application  to  you  for 
the  consideration  of  cases  of  any  (lescription  that  hav^e  already  been  passed 
on  by  the  former  board,  wliich  will  be  rejected." 

2.  "  Valuations  of  improvements  not  already  made  and  not  appearing  bv 
the  records  of  the  former  board  ;'^  ''and  even  then,  if  you  are  not  satisfied 
with  their  correctness,  valuations  must  be  nmde  of  all  such  improvements 
as  are  subject  to  your  jurisdicfAon  under  these  instructions,  and  were  in 
the  possession  of  the  Cherokees  at  the  date  of  the  treaty,  not  at  its  ratijica- 


14  Mis.  No.  8. 

Hon,  or  add  any  Talne  to  the  lands,  and  also  of  the  ferries  owned  by  them 
at  the  same  time,"  &c. 

3.  "  Claims  under  the  16th  article,  if  any  such  should  be  preferred,  it 
has  been  already  stated  would  not  be  entitled  to  your  favorable  considera- 
tion." "A  law  was  passed  by  Congress  appropriating  $50,000  to  pur- 
chase certain  tracts  of  land  in  the  State  of  Georgia,  reserved  to  the  Indians 
by  the  treaties  with  the  Cherokees  of  1817  and  1819."  Instructions  were 
issued  to  Col.  D.  G.  Campbell,  (fcc;  they  returned  a  list  of  reservees  of 
whom  they  had  purchased,  showing  they  had  paid  $4.5,6(35  to  them.  "  It 
is  presumed  (ill  those  fairly  entitled  to  its  provisions  applied  under  this  act; 
and  if  they  did  not,  that  they  are  guilty  of  laches,  which  would  operate  in  bar 
of  their  claims  now.  It  is  probable  the  16th  article  was  inserted  to  satisfy 
all  parties  who  could  claim,  but  all  such  should  be  very  closely  scrutinized; 
and  if  they  might  have  availed  themselves  of  the  law  of  1828,  and  did  not 
do  so,  they  ought  not  now  to  receive  your  decree  in  their  favor." 

4.  "  The  claims  for  reservations  which  were  taken  under  the  treaties  of 
1817  and  1819,  according  to  an  opinion  of  the  Attorney  General  of  14th 
of  May,  1838,  but  which  are  on  the  land  ceded  in  1835,  are  entitled  to  no 
compensation  for  the  reservations,  because  they  were  unauthorized,  and 
should  have  been  located  on  the  cessions  of  1817  and  1819;"  but  if  im- 
proved, then  the  improvements  only  should  be  paid  for,  under  the  ninth 
article. 

5.  '^  There  are  no  pre  emption  rights;  they  were  provided  by  the  12th 
article  of  the  original  treaty,  but  abrogated  by  the  first  of  the  supplemental 
articles,  and  never  had  more  than  an  inchoate  existence,  which  is  gone." 

Such  are  the  instructions  given  by  the  Commissioner  of  Indian  Affairs 
to  the  court  of  commissioners  under  the  17th  article.  They  are  interpre- 
tations of  the  treaty  given  according  to  axiom  12,  by  the  Executive  of  the 
United  States,  and  being  so  imposed  authoritatively  by  the  United  States, 
the  one  of  the  interested  contracting  powers,  are  in  violation  of  the  1st, 
3d,  and  15th  axioms  before  mentioned. 

In  so  doing  there  was  a  double  wrong  :  first,  in  not  leaving  the  court  of 
commissioners  free  to  make  their  own  interpretations  and  constructions; 
secondly,  in  making  interpretations  erroneous  and  in  direct  opposition  to 
the  true  sense  and  meaning  of  the  treaties. 

The  instruction  that  this  court  of  commissioners  had  no  jurisdiction  over 
cases  decided  by  their  predecessors  is  totally  wrong,  and  was  intended  to 
perpetuate  the  errors  committed  by  their  predecessors,  in  many  cases  so 
palpably  erroneous  as  to  excite  the  inference  that  they  were  the  results  of 
some  influence  foreign  to  the  treaty,  which  had  blinded  their  judgments, 
rendered  their  consciences  torpid  and  passively  obedient  to  such  extraneous 
influence,  to  which  the  instructions  issued  by  the  Commissioner  of  Indian 
Affairs,  Mr.  Harris,  was  the  key. 

The  court  of  commissioners  agreed  by  the  treaty  was  the  court  estab- 
lished by  the  authority  and  concurrent  Avill  of  both  the  contracting  powers. 
The  judges  when  appointed  were  in  by  the  treaty;  their  tenure  of  office 
was  by  the  treaty.  The  court  was  no  more  dissoluble  by  the  sole  will  of  the 
United  States,  in  good  faith  and  of  right,  than  any  article  of  the  treaty,  or 
the  wlr.  le  treaty.  The  ligament  of  the  t^'eaty  being  tied  by  the  concurrent 
powers  and  wills  of  the  two  contracting  nations,  could  not,  in  good  faith, 
be  untied  and  dissolved  in  any  other  manner  than  that  by  which  it  had 
been  tied  and  created.     "  Ununi  quodque  dissolvitur  eo  modo  quo  colli- 


Mis.  No.  8.  15 

gatur,"  is  a  maxim  of  law  between  nations,  as  well  as  between  individuals, 
who  contract  obligations. 

To  grant  commissions  to  persons  appointed  to  examine  and  adjudicate 
imder  the  17th  article,  to  hold  during  the  pleasure  of  the  President  of  the 
United  States,  was  a  departure  from  the  treaty;  the  offices  were  created  by 
the  treaty. 

The  constitution  of  the  United  States  operating  upon  treaties  made  in 
pursuance  thereof,  declares  them  to  be  the  supreme  law  of  the  land. 
From  the  terms  of  the  treaty  and  the  ratification  thereof  the  President 
derives  his  power  to  appoint,  and  the  Senate  derive  their  advisory  power 
in  respect  of  these  connnissioners  provided  by  the  ITth  article.  The  treaty 
creates  a  judicial  tribunal,  to  be  holden  by  commissioners,  by  whom 
*^'all  the  claims  arising  under  or  provided  tor  by  the  several  articles  of 
this  treaty  shall  be  examined  and  adjudicated."  As  well  might  the  Presi- 
dent commission  judges  of  the  Supreme  Court  to  hold  during  his  pleasure, 
as  to  commission  these  judges  under  the  17th  article  of  this  treaty  during 
his  pleasure.  Their  authority  of  office  as  judges  is  dignified  by  the  pow- 
ers of  the  two  contracting  nations,  who,  by  their  joint  powers,  have  created 
a  judicial  tribunal,  having  a  jurisdiction  to  decide  in  cases  wherein  the 
majesty  of  the  government  of  the  United  States  is  the  party  defendant  and 
to  be  adjudged  as  debtor. 

The  judicial  tribunal  so  created  by  the  treaty  is  not  an  inferior  court. 
It  is  not  a  court  whose  decisions  are  liable  to  be  reviewed  and  reversed  by 
the  United  States,  or  by  any  officer  of  the  United  States.  The  jurisdic- 
tion of  the  court  arises  out  of  the  treaty,  and  is  coextensive  with  the 
claims  arising  under  or  provided  for  by  the  treaty.  In  that  respect  and  to 
that  extent  it  is  not  of  limited  jurisdiction. 

The  duration  of  the  court  is  limited  to  no  fixed  period  of  time:  no  fixed 
stated  terms  are  prescribed  by  the  treaty.  The  business  to  be  transacted 
under  the  treaty  is  the  only  limitation  to  the  term  and  session  of  the  court. 
From  the  first  to  the  last  sitting  of  the  court  it  is  all  one  term,  one  and  the 
same  court,  possessing  the  same  powers,  no  matter  how  the  persons  consti- 
tuting the  court  may  be  changed  by  resignation,  death,  or  other  casualty. 
When  Mr.  Lumpkin  resigned,  after  many  adjudications,  and  Mr.  Wilson 
was  appointed  his  successor,  it  was  nevertheless  the  same  court  of  the 
treaty,  possessing  all  the  powers  of  the  treaty.  The  powers  of  Messrs. 
Kennedy  and  Wilson  were  coequal  with  the  former  powers  of  Messrs. 
Lumpkin  and  Kennedy  whilst  they  constituted  the  commission.  When 
Mr.  Jjiddell  was  added  to  the  conmiission  the  powers  of  Messrs.  Kennedy, 
Wilson,  and  Liddell  were  coequal  with  the  powers  of  Messrs.  Lumpkin 
and  Kennedy  whilst  they  were  in  commission,  or  of  Messrs.  Kennedy 
and  Wilson  when  they  composed  the  commission  and  the  court. 

That  tlie  President  of  the  United  States  may  at  his  pleasure,  and  with- 
out cause,  by  dismissing  the  court,  or  the  judges  of  tlie  court,  and  ap- 
pointing others,  break  the  sittings  into  separate  and  distinct  terms,  or  di- 
vide, constrict,  or  lessen  the  powers  and  jurisdiction  of  the  successors  as 
often  as  new  commissions  are  granted,  cannot  be  maintained  by  reason. 
Such  a  power  is  contrary  to  the  principles  of  tiie  law  of  nations  and  the 
faith  of  treaties.  Neither  party  can  by  his  act  alter  the  meaning  and  eflect 
of  the  treaty. 

The  United  States  cannot  be  sued  for  the  demands  of  the  Cherokees 
in  the  ordinary  courts,  nor  in  the  Supreme  Court  of  the  United  States,  nor 


16  '      .         Mis.  No.  8.  .,       , 

in  any  other  court  of  judicature  but  in  that  established  and  agreed  by  the 
treaty  of  New  Echota  for  the  examination  and  adjudication  of  those 
claims.  The  decision  of  that  tribunal  as  to  the  amount  due  to  each 
claimant  is  veritable  and  final,  and  to  be  paid  by  the  United  States.  This 
provision  for  a  tribunal  to  examine  and  adjudicate  between  the  respective 
claimants  as  plaintiffs  and  the  United  States  as  defendant,  is  the  great, 
solid,  and  most  effective  security  which  the  Cherokees  have  for  the  sev- 
eral indemnifications  and  other  claims  upon  the  United  States  mentioned 
in  the  treaty.  If  the  United  States  can  make  the  tenure  of  office  of  these 
judges  dependant  upon  the  mere  pleasure  and  will  of  the  President  of  the 
United  States;  if  he  can  dismiss  them  from  office  at  his  will,  dissolve  the 
court,  and  refuse  or  delay  to  appoint  others;  instruct  them  of  what  cases 
they  shall  take  cognizance,  and  of  what  they  shall  not;  instruct  them 
what  decisions  to  give;  not  to  issue  certificates;  instruct  them  as  to  the  in- 
terpretations given  by  the  United  States,  the  one  of  the  interested  con- 
tracting parties,  and  the  debtor  part)^;  curtail  their  jurisdiction  by  instruct- 
ing them  not  to  take  cognizance  of  this  or  that  class  of  cases,  as  not  apper- 
taining to  their  jurisdiction,  and  after  they  have  decided  revise  and  reverse 
their  decisions  upon  the  ground  that  they  have  exceeded  their  jurisdiction, 
or  because  they  have  decided  erroneously — tlien  the  security  provided  for 
the  Cherokees  by  the  ITth  article  is  impaired.  No  virtuous  efiect,  no 
solid  benefit,  grows  out  of  the  decisions  of  the  court  in  favor  of  the  Chero- 
kee claimants;  the  17th  article  of  the  treaty  would  by  such  construction  be 
Tendered  null,  and  without  effect,  except  that  which  the  mere  will  and 
pleasure  of  the  United  States,  the  debtor  party,  shall  allow  to  it.  A  con- 
struction which  lead«  to  such  an  absurd  consequence,  whic?i  renders  an 
article  in  the  treaty  null  and  without  effect,  is  contrary  to  the  8th,  lOth, 
and  11th  axioms  before  cited. 

The  power  belongs  to  every  tribunal  of  justice,  to  every  deliberative 
body,  to  correct  its  own  errors  or  mistakes,  or  misjudgments  and  conclu- 
sions. In  courts  of  law  the  power  to  grant  new  trials  is  clear,  and  liber- 
ally exercised,  as  before  shown  by  the  authority  of  Lord  Mansfield  in  the 
case  of  Bright  vs.  Eynon,  (1  Burr.  393,  395;)  of  Lord  Parker  in  the  case 
of  the  Q,ueen  vs.  the  corporation  of  Helston,  (Lucas's  Reports,  p.  202,)  and 
the  cases  referred  to  by  Lord  Mansfield.  T!ie  practice  is  familiar  in  all 
our  courts  of  law.  The  limitation  to  the  power  is,  that  it  be  exercised  be- 
fore the  authority  of  the  court  over  the  particular  case  has  been  cut  off  by 
the  lapse  of  time,  the  rules  of  practice,  or  the  terras  set  and  prescribed  by 
law  to  the  particular  court.  In  courts  of  equity,  applications  for  rehear- 
ings  are  entertained  liberally,  and  bills  of  review  to  correct  errors  apparent 
in  the  body  of  a- decree,  or  upon  new  matter  not  within  the  knowledge  or 
power  of  the  party  at  the  hearing,  are  well  known.  Bills  of  review  in 
England  are  entertained  at  any  time  within  twenty  years  after  decree 
enrolled,  (1  Harrison's  Ch.  Prac,  chapter  2,  pp.  13T-140.)  Before  decree 
signed  and  enrolled,  a  petition  for  a  rehearing  to  have  the  benefit  of  new 
matter,  or  to  correct  errors  of  fact  or  law,  is  the  practice.  (Standish  vs. 
Rudley,  2  Atk.,  p.  177;  Maddock,  Chan.,  pp.  370-272.) 

It  cannot  be  doubted  that  during  the  same  term  a  court  has  the  power 
to  amend,  alter,  set  aside,  and  correct  any  order  or  decree,  or  judgment, 
and  to  grant  a  new  trial  or  rehearing  upon  application  of  the  party  aggrieved 
by  an  error,  or  upon  the  mere  motive  of  the  court  itself,  where  the  judges 


Hp 


Mis.  No.  8.  If 

even  doubt  the  correctness  of  their  judgment;  much  more  where  the  error 
of  the  judgment,  or  decree,  is  apparput. 

The  records  of  the  various  boards  of  commissioners  appointed  by  the 
United  States  to  examine  the  claims  of  individuals  to  the  lands  in  Louis- 
iana purchased  of  France,  and  in  Florida,  purchased  by  the  United  States, 
show  that  those  boards  exercised  the  power  (and  rightfully  exercised  it) 
to  set  aside  rejections  of  claims  made  at  one  period  of  time,  and  to  affirm 
the  claims  at  after  periods  upon  new  evidence. 

The  whole  time  of  the  sittings  from  the  beginning,  in  1836,  to  the  final 
conclusion  of  the  business  under  the  seventeenth  article  of  the  treaty  of  New 
Ecliota,  is  but  one  term,  and  the  power  of  the  court  of  commissioners  to 
grant  rehearings  of  rejected  cases  is  within  the  sound  discretion  of  the 
commissioners. 

That  question  as  properly  belongs  to  the  judgment  and  decision  of  the 
commissioners  as  any  other  question  under  the  treaty.  They  have  so  de- 
cided, and  exercised  the  power  of  granting  new  hearings.  That  subject  is 
not  within  the  control  of  the  United  States  or  the  executive  ofiicers  of  the 
government,  any  more  than  any  other  decision. 

The  United  States  cannot  have  advantage  from  the  wrongs  committed 
by  the  Executive  in  putting  an  end  to  the  first  commission,  which  had  no 
limitation  as  to  time;  nor  by  issuing  commissions  to  be  held  during  the 
pleasure  of  the  President;  nor  by  dismissing  the  commissioners  without 
cause;  nor  by  granting  commissions  for  limited  terms.  Neither  an  act  of 
Congress,  nor  an  act  of  the  President,  can  alter  the  treaty,  or  restrict  the 
power  of  the  court  when  constituted  and  in  session  under  the  seventeenth 
article  of  the  treaty. 

The  Commissioner  supposes  the  decisions  to  be  final  against  the  commis- 
sioners themselves,  at  the  very  moment  any  decision  shall  be  made  against 
a  claimant;  but  not  final  against  the  government  of  the  United  States. 
The  Commissioner  of  Indian  Affairs  claims  that  "  the  power  is  inherent 
which  is  necessary  to  discharge  an  imposed  duty,  unless  prohibited  by 
law."  Is  not  the  treaty  of  New  Echota,  ratified  according  to  the  constitu- 
tion, a  law  of  the  land? 

The  true  meaning  of  the  declaration  of  the  treaty  that  the  decisions  of 
the  commissioners  shall  be  final,  is  that  they  shall  not  be  re-examined,  re- 
viewed, reversed,  or  set  aside,  by  any  other  tribunal,  court,  or  executive 
officer,  of  either  of  the  contracting  powers;  that  their  decisions  shall  be 
conclusive  as  to  the  matter  of  right  against  the  two  contracting  nations, 
the  powers  and  authorities  of  each  nation,  and  as  against  the  claimants. 
That  they  may  be  revised,  amended,  and  perfected,  by  thesam.e  tribunal  to 
whom  the  cognizance  is  intrusted,  is  a  power  necessary  and  proper  to  the 
end  for  which  this  court  was  instituted — the  attainment  of  justice;  it  is  ne- 
cessarily implied,  and  in  no  Avay  inconsistent  with  the  declaration  that 
their  decisions  shall  be  final  and  conclusive  against  appeal,  writ  of  error, 
review,  or  reversal,  by  any  other  tribunal  or  power,  judicial  or  execu- 
tive. 

The  decisions  of  the  Supreme  Court  of  the  United  States  are  final;  not 
liable  to  be  reviewed,  reversed,  or  set  aside  by  any  other  tribunal  or  power, 
judiciary  or  executive,  exercised  under  the  authority  of  the  United  States; 
but  not  final  and  conclusive  against  that  court  itself,  so  as  to  forbid  the 
ranting  of  re-arguments  or  rehearings,  at  the  discretion  of  the  court,  and 
for  the  attainment  of  justice. 
2 


18  Mis.  No.  8. 

But  the  opinion  of  Attorney  General  Lagar6  is  brought  in  aid  of  this 
power  of  the  Executive  to  review  the  judgments  and  certificates  of  the 
commissioners. 

The  case  upon  which  the  opinion  of  Mr,  Lagare  was  given,  (and  the 
opinion  itself,)  is  found  in  the  report  of  the  Commissioner  of  Indian  Affairs 
to  the  Secretary  of  War,  dated  14th  April,  1843. — (O  5,  and  the  letter  of  the 
commissioners  to  the  Commissioner  of  Indian  Affairs,  dated  25th  January, 
1839;  O  6,  pp.  54,  55,  of  rep.  No.  391,  vol.  2,  House  Reps,  of  1843-44.) 
The  Commissioner  of  Indian  Affairs  states  distinctly  that  the  claim  as  first 
submitted  to  the  board  of  commissioners  was  within  their  jurisdiction,  and 
that  the  only  objection  to  the  allowance  of  it  by  the  second  board  of  com- 
missioners was,  that  the  "  late  commissioners  had  virtualhj  rejected  the 
claim."     Mark!   ^^  Virtually  rejected  Xhe  cXmxn.''^ 

The  board  of  commissioners  had  distinctly  examined  what  their  prede- 
cessors in  office  had  done,  and  upon  the  facts  decided  that  the  former  board 
had  not  rejected  the  claim. 

Mr.  Attorney  General  Legare  was  asked  by  the  Secretary  of  War 
''whether  the  proceedings  that  were  had  before  the  former  board  amount 
to  a  rejection  of  the  claim." 

That  is  the  precise  question  as  stated  by  Mr.  Legare  himself  in  the  fore 
part  of  his  opinion.  He  was  asked  to  review  the  very  question  which  the 
board  of  commissioners  had  examined  and  decided.  He  differed  in  opin- 
ion from  the  commissioners,  and  reversed  their  decision  upon  the  very  ques- 
tion discussed  and  decided  by  that  board. 

It  cannot  be  hidden  nor  disguised  that  the  Secreiary  of  War  did  apply  to 
Mr.  Attorney  General  Legare  to  review  the  decision  of  the  board  of  com- 
missioners upon  a  point  which  had  been  discussed  by  the  commissioners 
and  directly  decided  by  the  board,  and  that  he  overruled  and  reversed  ihe| 
decision  of  the  board. 

By  the  opinion  of  the  board  of  commissioners  the  proceedings  of  thei 
predecessors  did  not  amount  to  a  rejection  of  the  claim:  by  the  opinion  o 
Mr.  Legare,  they  did. 

The  commissioners  were  right  in  overruling  the  plea  of  a  former  rejection 
and  Mr.  Legare  erred  egregiously  in  giving  his  opinion  to  the  contrary 

The  commissioners,  Messrs.  Kennedy,  Wilson,  and  Liddell,  wrote  t 
the  Commissioner  of  Indian  Affairs  on  the  25th  January,  1839,  for  Mr 
Rogers's  papers,  which  he  had  withdrawn  by  their  leave.  The  commission 
ers  had  not  entered  any  decision  on  their  record.  They  wanted  the  paperi 
that  they  might  enter  a  decision.  When  Mr.  Crawford  received  this  lette| 
the  commissioners  had  done  no  final  act.  They  wanted  the  papers  to  e 
able  them  to  do  a  final  act  upon  ex  parte  communications,  after  Mr  Roge 
had  withdrawn  his  papers  and  was  absent. 

If  Mr.  Rogers  had  been  apprized  of  this  ex  parte  testimony  furnished 
the  commissioners  after  he  had  withdrawn  his  papers  by  leave  of  the  cour 
and  when  his  claim  was  not  before  the  court,  and  not  therein  pending,  an| 
had  expostulated  and  protested  against  such  ex  parte  evidence,  or  had  e 
plained  it  away,  or  had  asked  time  to  rebut  it,  or  had  convinced  the  cou| 
that  their  opinion  intimated  to  Mr.  Crawford  was  not  only  erroneous,  b 
an  unwarranted  proceeding  in  a  case  not  pending  before  them,  their  lett 
to  Mr.  Crawford  would  have  been  no  estopel  to  them,  no  bar  to  their  j 
risdiction.  Notwithstanding  this  letter  to  Mr.  Crawford,  the  commissio 
ers  had  locus  podnitentice. 


Mis.  No.  8.  m 

Mr.  Crawford  did  not  return  the  papers ;  the  commissioners  entered  no 
decision  of  record;  did  no  final  acl  as  a  court.  They  had  not  the  papers 
before  them,  nor  an  application  before  them  by  Mr.  Rogers;  he  had  with- 
drawn his  papers  by  leave  of  the  court.  If  under  these  circumstances  they 
had  entered  a  decision,  they  would  have  acted  without  any  rightful  juris- 
diction. No  court  has  jurisdiction  to  adjudicate  and  extinguish  a  right,  or 
bar  a  claim  not  pending;  withdrawn  by  their  leave  and  when  the  party  is 
out  of  court,  absent,  not  notified  of  any  such  proceeding  and  ignorant  of  it. 
When  Mr.  Rogers  presented  his  application  anew  after  he  had  withdrawn 
his  papers,  it  was  ''res  integra;^'  he  had  the  right  to  fortify  his  claim  by 
new  evidence  and  arguments. 

Is  an  intention  to  do  an  act  the  act  itself?  Is  an  intent  to  despoil  a  man 
of  his  money  a  robbery  in  fact? 

But  Mr,  Crawford  did  not  send  the  papers.  There  is  no  decision  by  the 
commissioners  rejecting  the  claim  of  Mr.  Rogers  to  be  found  among  their 
records. 

When  the  first  board  closed  their  session  on  the  5th  March,  1839,  and 
returned  their  books,  papers,  and  records  to  the  War  Department,  no  pa- 
pers of  Mr.  Rogers  were  returned  by  the  commissioners;  no  decision  of  a 
rejection  of  Mr.  Rogers's  claim  was  of  record  as  made  up  for  the  commission- 
ers by  their  secretary;  there  is  now  no  such  record. 

The  board  of  commissioners  under  the  treaty  of  New  Echotawas  a  court 
of  record,  with  a  secretary  to  record  their  adjudications.  When  Mr.  Ro- 
gers presented  his  claim  before  Messrs.  Eaton  and  Hubley,  (the  commis- 
sioners under  the  treaty  of  New  Echota  secondly  appointed,)  the  United 
States  interposed  a  plea  of  decision  by  a  former  board  rejecting  the  claimj 
Mr.  Rogers  replied,  there  is  no  such  record.  Upon  every  such  plea  of  ?iid 
tiel  record,  the  party  alleging  a  former  judgment  or  adjudication  must  pro- 
duce an  exemplification,  a  true  copy  of  the  record,  or  he  fails  in  his  plea. 
The  United  States  could  produce  no  copy  or  exemplification  of  any  such 
record  of  the  commissioners  rejecting  Mr.  Rogers's  claim.  There  was  no 
such  record  of  the  court  of  commissioners. 

But  in  place  of  such  record  of  a  decision  of  the  commissioners,  the  United 
States  offered  in  evidence  the  letter  of  the  commissioners  to  Mr.  Crawford^ 
and  his  answer  that  he  did  not  send  the  papers,  but  he  would  file  their  letter 
with  Mr.  Rogers's  papers,  and  consider  that  "  sufficient  evidence  of  your 
rejection  of  his  cla.im."  The  commissioners  adjudged  that  it  was  not  a  de- 
ision  made  by  the  board  of  commissioners,  and  that  it  was  not  a  bar.  Mr. 
Legare  revises  that  decision  of  the  court  of  commissioners,  and  thinks  it  \vas 
rroneous.  Mr.  Legare  says  the  commissioners  reported  upon  it  as  unfound- 
ed, "and  their  report  was  received  and  recorded  as  a  judgment  by  otie  of 
/our  predecessors.^^  That  is,  by  one  of  Mr.  Porter's  predecessors  as  Secre- 
ary  of  the  Department  of  War.  Wonderful  to  be  told !  A  Secretary  of 
War  manufactured  in  his  office  a  judgment  for  the  court  of  commissioners 
ifter  their  session  had  terminated. 

Such  conduct  of  the  Department  of  War  was  without  authority,  a  usur- 
)ation;  a  meddlesome,  obtrusive  act,  having  no  binding  legal  force  whatever, 
n  disregarding  such  an  act,  the  commissioners  secondly  appointed  acted 
liscvoedy  and  according  to  the  law  and  the  justice  of  the  case. 

The  commissioners  had  no  right  to  call  for  Mr.  Rogers's  papers  after  he 
lad  withdrawn  them  by  leave  of  the  court.  The  Commissioner  of  Indian  Af- 
fairs had  no  right  to  apply  the  papers  ol  Mr,  Rogers  left  in  his  office  for  one 


20  Mis.  No.  8. 

purpose ,  to  the  fabrication  of  a  judgment  for  the  commissioners .  The  Seci'e- 
tary  of  War  had  no  rightful  authority  to  manufacture  a  decision  for  the 
court  of  commissioners.  So  this  whole  matter  concerning  a  decision  by  the 
commissioners  rejecting  the  claim  of  Mr.  Rogers  was  a  nullity  in  law,  and 
out  of  the  cognizance  of  the  War  Department  and  of  the  Attorney  General. 

The  Attorney  General  has  thought  fit  to  make  a  distinction  between  the 
official  powers,  duties,  and  jurisdiction  of  the  commissioners  first  appointed . 
and  those  secondly  appointed  under  the  seventeenth  article  of  the  treaty  of 
New  Echota.  None  such  exists  in  law.  Although  the  persons  were  dif- 
ferent, their  official  powers,  duties,  and  jurisdiction,  were  derived  from  the 
same  treaty;  they  are  judges  of  the  same  court,  with  no  difference  of  pow- 
ers and  authorities  than  if  there  had  been  no  interruption  of  the  commis- 
sion by  the  illegal  act  of  an  executive  officer.  The  treaty  did  not  split 
and  divide  the  sittings  of  the  cotirt  of  commissioners  into  terms^  such  as 
Hilary,  Easter,  Trinity,  and  Michaelmas,  assigned  to  the  Court  of  Kings- 
Bench  .  All  the  successive  commissioners ,  and  all  their  successive  sittings , 
composed  one  and  the  same  court,  and  one  and  the  same  term,  established 
by  the  treaty,  with  no  more  difference  of  powers  and  jurisdiction  than 
between  the  court  of  Saturday  and  the  court  of  Monday. 

The  Attorney  General  having  first  construed  the  illegal,  officious  inter- 
meddling of  the  War  Department  into  "res  adjudicata"  by  the  former  com- 
missioners, calls  the  application  of  Mr.  Rogers  to  the  secondly  appointed 
commissioners  under  the  same  treaty  '-an  appeaV  from  the  decision  of 
their  predecessors.  Names  do  not  change  the  substances  and  essences  of 
things.  Is  an  application  to  the  succeeding  judges  of  the  same  court,  de- 
riving their  authority  and  jurisdiction  from  the  same  treaty  which  gave 
authority  and  jurisdiction  to  their  predecessors,  "an  appeal"  in  the  legal 
sense  of  the  terra?  But  suppose  the  predecessors  in  office  of  the  same 
court  and  same  term  had  decided  a  case,  committed  a  mistake,  or  given 
an  erroneous  decision  upon  the  facts,  or  had  taken  the  plaintiff  by  surprise, 
is  an  application  to  the  successors  in  office  of  the  same  court,  and  during 
the  term,  to  correct  the  mistake  or  set  aside  the  erroneous  decision,  or  to 
grant  a  new  trial  because  of  the  surprise,  "  an  appeal"  in  the  legal,  tech- 
nical sense,  which  the  Attorney  General  has  applied  to  it?  Would  an  ap- 
plication to  the  Supreme  Court  of  the  United  States,  made  during  the  sec- 
ond week  of  a  term,  to  set  aside  a  judgment  of  the  first  week  of  the  term, 
be  "an  appeal"  from  the  decision  of  the  Supreme  Court?  Familiar  prac- 
.tice,  and  the  voices  of  the  profession,  of  judges  and  counsellors,  answer 
"No." 

The  Attorney  General  admits  that  the  judgments  of  the  commissioners 
under  treaties  do  conclude  "parties  to  the  treaty;"  but  makes  a  distinc- 
tion between  the  conclusive  eflect  thereof  politically,  as  between  the  con- 
.tracting  nations,  and  the  conclusive  effect  of  an  award  as  to  the  individual 
rights  of  the  citizens  to  whose  benefit  the  judgment  is  to  enure. 

There  is  under  this  treaty  af  New  Echota  no  room  for  any  such  distinc- 
tion— for  any  escape  from  the  principle,  that  the  judgment  of  the  commis- 
.sioners  is  final  and  conclusive  as  between  the  parties  to  the  adjudication. 
The  treaty  of  New  Echota,  made  and  concluded  between  the  United  States 
and  the  Cherokee  nation,  establishes  the  court  of  commissioners  for  the 
very  purpose  of  examining  and  adjudicaung  the  claims  of  individuals 
against  the  United  States;  declares  "that  their  decisions  shall  be  final;  and 


i 


Mis.  No.  8.  21 

on  their  certificate  of  the  amount  due  the  several  claimants,  they  shall  be 
paid  by  the  United  States." 

By  the  terms  of  the  treaty,  the  cases  to  be  adjudged  by  the  court  of 
commissioners  are,  the  several  claims  of  individuals,  as  the  parties  plain- 
tiffs, against  the  United  States  as  the  party  defendant — (and  most  bitterly 
have  these  claims  been  contested  and  defended  by  the  Commissioner  of 
Indian  Affairs.) 

Tivis  opinion  of  the  Attorney  General  is  in  a  case  properly  and  clearly 
within  the  provisions  of  the  treaty:  the  effort  and  intent  of  the  application 
for  the  opinion  of  the  Attorney  General  was  to  revise  and  annul  the  deci- 
sion of  the  commissioners,  as  certified  in  favor  of  the  claimant. 

The  case  comes  to  this:  Rogers  presented  his  claim  to  the  second  board 
of  commissioners  for  improvements  clearly  within  the  stipulations  of  the 
treaty.  The  United  States  interposed  a  bar  of  a  former  rejection  by  the 
commissioners;  the  second  board,  upon  examination  of  the  matters  relied 
on  as  being  a  bar,  decided  them  not  a  bar.  The  Attorney  General  revises 
the  decision,  comes  to  conclusion  tliat  the  decision  elaborated  by  the  War 
Department  ought  to  have  been  allowed  as  a  bar,  and  therefore  that  the 
second  board  had  no  jurisdiction,  and  their  decision  in  favor  of  the  claim 
is  a  nullity. 

If  the  decisions  of  the  commissioners  upon  matters  directly  in  issue, 
and  directly  decided,  are  to  be  overhaled  and  annulled,  because  the  Attor- 
ney General  and  the  Executive  officers  of  the  United  States  differ  from  the 
opinion  of  the  commissioners,  then  the  declaration  of  the  treaty  that  the 
decision  of  the  commissioners  ^' shall  be  final,"  loses  its  proper  meaning 
and  eftect. 

The  Attorney  General  says:  ^^  The  present  commissioners  object  that 
the  proceeding  was  irregular,  Rogers  having  obtained  leave  to  withdraw 
his  papers;  and  I  certainly  concur  with  them,  as  at  present  advised,  in  that 
view.  But  the  case  v-as  clearly  tijithin  tJie  jurisdiction,  of  the  first  board; 
was  fairly  presented,  was  fully  opened;  and  they,  by  what  seemed  to  them 
satisfactory  evidence — taken,  however,  as  it  is  alleged,  without  sufficient 
care,  perhaps  without  cross-examination — were  convinced  that  the  claim 
was  an  unfounded  one.  They  reported  upon  it  as  such,  directly  and  posi- 
tively, and  their  report  was  received  and  recorded  as  a  judgment  by  one 
of  your  predecessors  "  /  / .' 

If  the  Commissioner  of  Indian  Affairs,  or  the  Secretary  of  War,  thought 
fit  to  instruct  the  commissioners  to  make  a  report  to  them  for  their  use  and 
convenience,  such  report  cannot  be  evidence  against  individuals,  to  con- 
elude  their  rights  and  interests,  and  to  have  the  legal  force  and  eftect  of  a 
decision  or  judgment,  when  no  such  appears  in  the  records  of  the  pro- 
ceedings of  the  commissioners  done  openly  and  publicly  when  sitting  as  a 
judicial  tribunal.  Such  an  attempt,  by  a  Secretary  of  War,  by  recording 
a  report  in  his  oflice  for  the  purpose  of  making  it  a  judgment  of  the  com- 
missioners, v.^hen  no  such  judgment  appears  in  their  own  records,  is  im- 
potent in  law,  and  an  unadvised  assumption  of  power. 

The  Attorney  General  adds:  "  By  what  authority  did  the  present  com- 
missioner^s  open  that  judgment?  Because  it  was  given  in  mistake;  because 
there  was  an  irBCgularity  in  the  proceedings,  say  they:  that,  if  shown  in 
proper  time,  would  be  a  very  good  reason  for  reversing  it  in  a  competent 
■court  of  apj>eals  (but  there  is  none  such  provided  here,)  or  is  a  good  ground 
addressed  to  the  discretion -of  the  same  court  for  a  new  trial;  or  finally, 


22  Mis.  No.  a        .  .  '       . 

may,  in  re  minime  dnbia,  justify  an  interference  of  the  government^  partj 
to  the  treaty,  to  enforce  the  doisig  of  justice  under  it;  and  in  this  last  case 
it  becomes  a  pohtical  question  again  as  it  was  at  first." 

The  Attorney  General  has  opened  a  decision  and  certificate  of  the  com- 
missioners in  a  case  confessedly  and  undoubtedly  within  the  stipulations 
of  the  treaty.  He  has  exercised  the  power  of  an  appellate  tribunal,  re- 
viewed the  facts  and  the  law  arising  out  of  the  facts  directly  adjudicated 
by  the  court  of  commissioners,  upon  a  plea  collateral,  and  not  touching  the 
merits  of  the  claim,  but  a  technical  special  plea  to  evade  the  merits,  which 
are  clearly  in  favor  of  the  claimant.  By  reversing  the  opinion  of  the  court 
upon  this  minor  matter,  not  at  all  involving  the  merits  of  the  ckiim,  the 
Attorney  General  came  to  his  conclusion  that  the  court  had  not  jurisdic- 
tion. That  the  first  board  had  jurisdiction  to  allow  the  claim,  is  expressly 
declared.  The  questions  whether  the  first  board  had  rejected  the  claim,. 
and  whether  that  board  had  not  improperly  written  a  letter  to  the  Commis- 
sioner of  Indian  Affairs,  and  whether  that  letter  should  stand  for  a  deci- 
sion when  no  decision  appeared  on  the  records  of  the  court  of  commis- 
sioners, were  questions  involved  in  the  decision  of  the  second  board,  and 
decided  in  favor  of  the  claimant.  That  is  the  decision  reviewed  and  re- 
versed by  the  Attorney  General ;  and  because  he  differs  from  the  court  of 
commissioners  upon  those  collateral  questions  not  touching  the  merits  of 
the  claim,  he  pronounced  that  the  court  of  commissioners  had  no  jurisdic- 
tion. The  treaty  pronounces  that  the  Attorney  Gensral  had  no  jurisdic- 
tion. Unhonored  is  the  majesty  of  the  treaty,  fallen  is  the  dignity  of  the 
court  established  by  the  treaty  to  adjudicate  finally  between  the  two  con- 
tracting nations,  if  the  decisions  of  that  court  can  be  reviewed  and  re- 
versed by  a  subordinate  officer,  a  retained  attorney,,  of  one  of  the  con- 
tracting powers. 

There  was  no  judgment  of  the  first  commissioners  to  open,  except  a 
pretended  one,  manufactured  in  the  Indian  office,  or  in  the  War  Depart- 
ment, without  color  of  authority  but  that  lawless  will  which  feels  power 
and  forgets  right.  There  was  good  cause  for  disrespecting  that  pretended 
judgment  when  it  M'-as  relied  on  to  defeat  justice  in  the  same  court,  al- 
though holden  before  different  judges.  It  was  the  court  established  by 
the  treaty;  deriving  its  powers  and  jurisdiction  from  the  treaty;  the  same 
court,  whensoever  in  session ;  not  at  all  changed  as  to  its  powers  or  juris- 
diction, howsoever  the  particular  persons  invested  with  commissions  to- 
hold  the  court  might  be  chauged.  That  there  is  not  any  competent  cours 
of  appeals  provided  for  reversing  a  decision  of  the  coint,  whether  by  the 
first  or  the  second,  or  third  or  fourth  set  of  judges  who  successively  held 
the  court,  is  clear;  not  even  the  w^hole  e3ecutive  depaitment  of  the  govern- 
ment of  the  United  States  could  revise  and  reverse  a  decision  of  the  board 
upon  the  questions,  or  either  of  them,  presented  by  the  Secretary  of  War 
for  the  opinion  of  the  Attorney  General,  otherwise  than  by  lawless  power 
and  a  breach  of  that  public  faith  which  was  pledged  by  the  treaty.  As  to 
the  resort  to  the  political  power  of  the  Cherokee  nation,  a  party  to  the 
treaty,  to  enforce  the  doing  of  justice  by  the  United  States,  the  other  party 
to  the  treaty,  the  memoriahsts  have  no  apprehension,  no  belief,  that  such 
will  ever  become  necessary.  On  the  contrary,  they  have  full  belief  and 
confidence  that  the  high  authorities  of  the  United  States  will,  when  in- 
formed of  the  past;  take  due  case  to  remoYe  those  obstructions  which  have 


Mis.  No.  8.  23 

heretofore  been  cast  in  the  way  of  the  fulfilment  of  the  treaty  of  New 
Echota. 

The  Attorney  General  has  asked,  ^'  Where  does  a  board  of  commission- 
ers, authorized  only  to  examine  cases  not  passed  upon  by  the  former 
board,  find  authority  to  re-examine  one  that  was?" 

That  interrogative  takes  by  surreption  the  proposition  that  the  second 
board  of  commissioners  was  confined,  in  its  authority,  within  narrower 
limits  than  those  assigned  by  the  treaty. 

Where  did  the  Attorney  General  find  authority  to  deny  the  cognizance 
of  the  court  of  commissioners  to  grant  rehearings  and  new  trials  in  cases 
passed  upon  by  the  former  board?  Nowhere  but  in  the  instruction  given 
by  the  Commisssoner  of  Indian  Affairs  to  the  commissioners.  The  Com- 
missioner of  Indian  Affairs  could  not  by  his  instructions  limit  the  author- 
ity of  the  court  established  by  the  treaty,  as  the  Congress  of  the  United 
States  may  limit  the  jurisdiction  of  the  courts  respectively  established  by 
law.  The  treaty  cannot  be  altered  by  the  instructions  of  the  Executive. 
The  treaty  does  not  speak  of  a  first  and  second  board,  nor  of  first,  second, 
third,  and  fourth  terms  of  the  court  of  commissioners.  It  provides  for 
commissioners  to  examine  and  adjudicate  all  claims  under  the  treaty. 
The  powers  necessary  and  proper  to  attain  the  ends  of  justice  are  in^plied. 
These  include  the  filling  of  vacancies  which  happen  by  deaths,  resigna- 
tions, (fcc;  they  imply  a  tenure  of  office  not  dependant  upon  the  will  of 
the  appointing  power,  one  of  the  interested  contracting  parties,  and  the 
debtor  party;  they  include  the  power  to  grant  new  trials  and  rehearings, 
and  to  correct  irregularities  and  mistakes. 

The  Attorney  General,  to  sustain  his  argument,  puts  an  extreme  case, 
viz:  "  Had  these  gentlemen  passed  sentence  of  death  upon  an  Indian, 
they,  and  all  engaged  in  executing  their  judgment,  would  have  been 
guilty  of  murder."  This  supposition  is  not  very  complimentary  to  the  in- 
telligence or  trust-worthiness  of  the  gentlemen  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate.  But  if  such  a  sen- 
tence should  have  been  passed,  the  commissioners  must  have  given  their 
certificate  of  the  decision  in  the  supposed  case  somewhat  in  this  form:  We 
certify  that  we  have  examined  and  adjudicated  the  claim  of  A  B,  a  Chero- 
kee Indian,  and  find  that  the  sentence  due  to  him  under  the  treaty  is,  to  be 
hung  by  the  neck,  with  a  hempen  rope,  until  he  is  dead;  to  be  paid  by  the 
United  States,  under  the  Cherokee  treaty.  Signed,  &.c.  As  the  expense 
would  have  fallen  on  the  treasury  of  the  United  States,  the  Commissioner 
of  Indian  Affairs  would  have  discovered  that  there  was  no  appropriation 
by  the  Congress  for  the  expense  of  the  rope,  and  other  incidents,  and 
therefore  would  have  stopped  the  certificate,  (as  he  has  done  many  others 
adjudicating  money,)  and  so  no  murder  would  have  come  of  it. 

The  treaty  has  been  ratified  by  the  United  States.  The  decisions  of 
the  commissioners  are  to  be  final,  by  the  very  terms  of  the  treaty.  The 
danger  to  the  treasury  of  the  United  States  possible  under  the  treaty,  was 
a  matter  to  be  considered  when  the  subject  was  in  treaty  and  under  con- 
sideration, and  before  ratification.  The  government  of  the  United  States 
has  the  sole  power  of  appointing  the  commissioners.  In  that,  it  has  abun- 
dant security  against  the  danger  to  the  treasury  of  the  United  States  from 
the  possible  abuse  of  the  powers  conferred  on  the  commissioners  in  the 
17th  article.  It  is  not,  on  the  part  of  the  United  States,  a  fair  argument 
against  letting  the  certificates  of  the  commissioners  have  their  full  and 


24  Mis.  No.  8. 

conclusive  effect  according  to  the  treaty,  that  the  United  States  might  hap- 
pen to  appoint  as  commissioners  men  so  ignorant  or  so  httle  trustworthy 
as  to  pass  "  sentence  of  death  on  an  Indian." 

On  the  other  hand  there  is  a  security  due  to  the  Cherokees,  the  other 
party  to  the  treaty.  That  security  consists  in  the  integrity,  capacity,  fit- 
ness, and  independence  of  the  commissioners,  and  in  the  final  effect  of 
their  decisions  when  perfected  and  certified.  If  they  may  be  revised 
and  annulled  by  the  Executive  of  the  United  States,  upon  the  pretence 
that  the  commissioners  have  exceeded  their  jurisdiction,  then  the  Chero- 
kees  have  not  the  security  contemplated  by  the  sense  and  meaning  of  the 
seventeenth  article.  The  debtor  becomes  the  judge  of  what  he  will  pay^, 
instead  of  the  judges  appointed  under  that  article  of  the  treaty. 

It  is  inconsistent  with  the  terms  of  that  article  to  say  the  certificates  of 
the  commissioners  shall  undergo  the  supervision  of  the  Attorney  General 
of  the  United  States,  or  of  the  Department  of  War.  It  is  a  limitation  upon 
the  powers  conferred  upon  the  commissioners,  imposed  by  the  Executive 
of  the  United  States  after  the  treaty  was  ratified,  contrary  to  the  2d  and  3d 
general  axioms  before  cited. 

In  a  controversy  between  two  citizens  about  the  terms  of  a  complicated 
covenant,  what  would  be  thought  of  the  fairness  of  a  proposition  of  the 
defendant  that  the  meaning  and  extent  of  his  covenants  should  be  deter- 
mined by  his  own  retained  counsellor  and  attorney,  indoctrinated  into  the 
versions  of  the  instrument  made  by  the  interested  defendant? 

The  claims  presented  before  the  commissioners  for  adjudication  are  sub- 
jects open  to  free  discussion  before  the  commissioners.  Then  and  there  is 
the  time  and  place  for  the  United  States,  by  their  attorneys  and  counsellors 
learned  in  the  law,  to  argue  that  this  or  that  claim  is  not  within  the  treaty. 
After  the  commissioners  have  decided  and  certified  their  decision,  then 
that  the  United  States  shall  send  that  decision  to  the  Attorney  General  of  the 
United  States  for  his  commentary,  revision,  and  opinion  as  to  its  validity, 
is  an  after  limitation  and  restriction  of  the  povv^ers  and  authorities  of  the 
commissioners,  contrary  to  the  final  effect  of  their  certificates,  as  agreed  by 
the  seventeenth  article  of  the  treaty.  It  is  a  supplement,  a  proviso  to  the 
seventeenth  article  not  therein  expressed,  a  mental  reservation,  a  condi- 
tion, directly  repugnant  to  the  sense  and  plain  meaning  of  that  article  as 
concluded,  signed,  and  ratified. 

The  Cherokee  nation,  the  one  party  to  the  treaty,  by  the  seventeenth 
article  had  a  consideration,  an  inducement,  for  the  cessions  and  stipula- 
tions on  their  part,  and  a  security  for  the  fulfilment  of  the  stipulations  on 
the  part  of  the  United  States  in  a  court  of  commissioners  to  be  appointed 
specially  to  examine  and  adjudicate  all  the  claims  against  the  United  States, 
whose  decisions  it  w^as  agreed  should  be  final.  To  this  both  contracting 
nations  assented.  The  Cherokees  are  not  subject  to  the  general  laws  of 
the  United  States;  they  have  no  voice,  no  representation,  in  the  enactment 
of  those  laws,  nor  are  they  bound  to  take  notice  of  them.  The  resort  to 
the  opinion  of  the  Attorney  General  of  the  United  States,  and  its  effect  upon 
the  officers  of  the  treasury  and  other  departments,  are  matters  of  which 
the  Cherokees  had  no  knowledge,  nor  were  they  bound  by  any  such.  In 
the  treaty  no  allusion  is  made  to  any  such  power  to  control  the  certificates 
of  the  commissioners;  no  such  quahfication,  no  such  proviso,  is  annexed 
to  the  agreement  that  the  certificates  of  the  commissioners  shall  be 
final.     To  annex  such  qualifications  now  that  the  treaty  is  ratified;  would 


Miso  No.  8. 

be  to  bind  the  Cherokees  by  the  laws  made  for  the  regulations  of  the  in- 
ternal atfairs  of  the  United  States,  whereof  no  nation  was  bound  to  take 
notice  in  making  a  treaty  with  the  United  States,  and  is  in  direct  conflict 
with  the  words,  sense,  and  meaning  of  the  treaty. 

Attorney  General  Legare  in  his  opinion  professes  to  have  disposed  of  the 
opinion  of  Attorney  General  Butler,  which  had  been  previously  given  in 
respect  of  this  treaty  of  New  Echota.  The  opinion  of  Attorney  General 
Butler  is  of  the  2Tth  August,  1S3S,  addressed  to  the  Secretary  of  War. — 
(See  vol.  Opinions  of  Attorneys  General,  p.  1210.)  .  :  , 

He  says:  ''  '      ,•     ' 

"  The  treaty  provides  that  the  claims  arising  under  the  treaty  shall  be 
examined  and  adjudicated  by  commissioners  to  be  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate,  and  that  their  de- 
cision shall  be  final.  I  am  satisfied  that  all  the  opinions  given  in  this 
office  in  respect  to  the  claims,  have  been  extra  official  and  unauthorized; 
the  Attorney  General  having  no  power  to  give  an  official  opinion  on  the 
request  of  the  head  of  a  department,  except  on  matters  that  concern  the 
official  powers  and  duties  of  such  department.  The  character  of  the 
Chevokee  board  of  commissioners  is  in  principle  the  same  v/ith  that  of  the 
boards  appointed  under  the  conventions  with  Spain,  Naples,  and  f^rance; 
and  it  was  never  supposed,  in  either  of  those  cases,  that  the  Attorney 
General  could  be  called  on,  through  the  head  of  any  department,  to  ex- 
amine and  discuss  the  various  claims  litigated  before  them,"  &c. 

In  aid  of  the  general  principle  of  the  inviolability  of  decisions  of  tribunals 
created  by  treaty  declaring  them  final,  and  of  the  impropriety  of  the  inter- 
ference of  the  Executive  to  inquire  into,  or  in  any  manner  to  revise  or  alter 
those  decisions,  we  refer  to  two  previous  opinions  given  by  the  Attorneys 
General  of  the  United  States,  in  those  early  seasons  of  virtue  when  public 
functionaries  were  determined  in  spirit  to  do  justice,  and  resolute  against 
motives  to  warp  their  integrity. 

The  one  is  the  opinion  of  Attorney  General  Breckenridge,  December  24, 
1S05,  on  an  award  of  the  commissioners  under  the  Tth  article  of  the  treaty 
of  the  United  States  and  Great  Britain  of  1794 — (Opinions  of  Attorneys 
General,  vol.  1,  p.  97.)  The  other  of  Attorney  General  Rodney,  of  July 
22, 1S07' — (vol.  of  Opinions  of  Attorneys  General,  p.  106;)  both  addressed 
to  the  Secretary  of  State. 

Mr.  Breckenridge  said:  "  This  would  be  going  into  a  re-examinaiion  of 
the  matters  referred  to  and  decided  on  by  the  commissioners,  of  which, 
under  the  treaty,  they  had  the  exclusive  and  final  jurisdiction." 

Mr.  Rodney  said:  "The  award  is  the  legal  and  the  statutable  or  con- 
ventional evidence  for  proving  to  whom  the  money  must  be  paid.  It  is 
the  instrument  established  by  the  treaty,  and  you  cannot  travel  out  of  the 
record,  which  is  final  and  conclusive  as  to  the  persons  who  are  claimants; 
no  po\A^er  of  appeal  or  review  exists  to  correct  errors  or  mistakes  of  the  com- 
missioners." 

By  the  faith  of  treaties  \s  meant  a  sincere  resolution,  a  firm  constancy  in 
fulfilling  the  engagements  declared  in  a  treaty.  That  faith  is  sacred  and 
holy  by  the  law  of  nations;  it  secures  the  peace  and  safety  of  nafions.  On 
the  due  observance  and  execution  of  treaties  depends  all  the  security  which 
States  and  nations  have  with  respect  to  each  other.  We  can  no  longer  de- 
pend on  conventions  to  be  made,  if  those  that  are  made  be  not  maintained 
and  fulfilled.     Nations  have  a  riffhtto  unite  to  humble  him  who  breaks  his 


26  Mis.  No.  8. 

treaties,  and  refuses  to  fulfil  them  upon  pretensions  ill -founded  and  frivo- 
lous. 

That  the  decisions  of  the  commissioners  shall  be  final,  and  that  "  on 
their  certificates  of  the  amount  due  the  several  claimants,  they  shall  be  paid 
by  the  United  States,"  are  engagements  by  the  United  States  expressly  de- 
clared by  the  treaty.  How  is  this  stipulation  fulfilled  when  the  certificates  of 
the  commissioners  are  reviewed,  reversed  and  annulled  by  the  law  officer  of 
the  United  States?  How  is  the  faith  due  to  the  certificates  observed,  if  the 
law  officer  of  the  United  States  may  advise  the  accounting  officers  of  the 
treasury  that  the  commissioners  have  exceeded  their  jurisdiction?  Of  what 
value  is  a  judgment  without  execution,  or  the  means  of  getting  payment? 
What  is  the  dignity  of  a  court,  what  confidence  can  be  reposed  in  its  de- 
cisions, of  what  worth  areits  judgments,  if  the  agents  and  retained  attorney 
of  the  defendant  may  commune  with  and  instruct  the  judges  secredy  as  to 
the  decisions  thoy  shall  makcj  and  if,  when  made,  they  may  be  reviewed 
and  annulled  by  the  attorney  of  the  defendant? 

Expressions  are  thrown  into  the  opinion  of  the  Attorney  General  Legare, 
which,  coupled  with  the  positive  decision  as  made  in  the  particular  case, and 
with  the  overruling  of  the  previous  opinion  of  Attorney  General  Butler,  had 
the  effect  to  encourage  the  officer  of  Indian  affairs  and  the  Secretary  of  War  to 
disrespect  the  decisions  and  cert,ifica;esof  the  commissioners,  and  to  with- 
hold payment,  as  will  be  seen  by  the  report  of  Mr.  Foot,  and  the  resolution 
thereon  adopted  by  the  Senate  and  House  of  Representatives,  approved  June 
15,  1844.  (See  doc.  391,  Mr.  Foot's  rep.,  28th  Cong.  Istsess.;  Reports 
of  Committees  of  House  of  Reps.,  1843-44,  vol.  2.) 

The  majority  of  the  Committee  on  Indian  Affairs  made  their  report,  (No. 
391,)  to  sustain  the  grounds  taken  by  the  Executive  department  and  the 
opinion  of  Attorney  General  Legare,  which  was  referred  to  and  made  a  part 
of  the  report  of  the  majority  of  the  committee.  The  minority  of  the  com- 
mittee made  a  counter  report,  denying  the  right  to  review  or  reverse  the  deci- 
sions of  the  commissioners,  commented  upon  the  doctrine  in  the  opinion  of 
Attorney  General  Legare,  combatted  that  opinion  by  reason  and  authority, 
and  reported  a  resolution  ordering  the  Secretary  of  the  Treasury  to  pay  the 
certificates  of  the  commissioners  when  presented.  The  report  of  the  minority 
of  the  committee  was  sustained  by  the  House,  and  the  joint  resolution  before 
mentioned  was  passed  and  approved.     (10th  vol.  Laws  U.  S.,  p.  659.) 

By  these  proceedings  the  Congress  disavowed  the  doctrine  of  review 
and  reversal  contained  in  the  opinion  of  Attorney  General  Legare,  as  used 
in  the  Department  of  War,  and  vindicated  the  honor  of  the  United  States 
and  the  faith  of  the  treaty  of  New  Echota. 

Before  this  proceeding  in  1844,  the  instructions  issued  by  Mr.  Harris, 
and  by  Mr.  Crawford,  were  operating  upon  the  commissioners,  by  the  in- 
fluence of  the  War  Department,  and  by  erroneous  constructions  of  the  trea- 
ties, wholly  unknown  to  and  withheld  from  the  claimants,  until  dragged 
into  light  by  successive  resolutions  of  the  one  or  the  other  of  the  houses  of 
Congress. 

Notwithstanding  the  reconsideration  by  the  second  board  of  commission- 
ers of  claims  rejected  was  so  strenuously  forbidden,  as  before  mentioned, 
yet,  where  such  reconsiderations  would  favor  the  interests  of  the  treasury 
of  the  United  States,  they  were  lawful  enough,  and  within  the  jurisdic- 
tion of  the  commissioners.  Accordingly,  in  the  instructions  of  the  Com- 
missioner of  Indian  Affairs  of  28th  September,  1842,  (Rep.  391,  aforemen- 


Mis.  No.  a  81 

tioned,  p.  18,)  he  said,  'H^aluations  of  improvements  appearing  by  the  re- 
cords of  the  former  boards  '  if  you  are  not  satisfied  with  their  correctness,' 
are  to  be  revakied." 

As  to  claims  under  the  16th  article  of  the  treaty,  the  commissioners  were 
instructed  by  the  Commissioner  of  Indian  Afiairs  as  follows  :  "  It  is  not 
supposed  that  any  cases  of  this  kind,  deserving  your  favorable  considera- 
tion, \vill  be  presented;  but  it  is  possible  there  may  be."  (See  Rep.  391, 
aferementioned,  p.  20;  and  again,  p.  22.)  "^  Claims  under  the  16th  article, 
if  any  such  should  be  preferred,  it  has  been  already  stated,  would  not  prob- 
ably be  entitled  to  your  favorable  consideration." 

Here  is  a  tampering;  an  instruction  from  the  War  Department  to  prepos- 
sess and  prejudice  the  minds  of  the  commissioners  against  a  class  of  claims 
expressly  provided  for  by  the  treaty.  What  are  we  to  think  of  such  a  mode 
of  administering  justice  under  the  treaty? 

But  again,  (same  page,)  an  act  of  Congress,  appropriating  ,'^50,000  to  pur- 
chase certain  lands  in  the  State  of  Georgia  reserved  to  the  Indians  by  the 
treaties  of  181.7  and  1819,  is  alluded  to,  and  the  proceedings  under  it  are 
mentioned.  ''It  is  presumed  all  those  fairly  entitled  to  its  provisions 
applied  under  this  law;  and  if  they  did  not,  that  they  were  guilty  of  laches, 
which  would  operate  in  bar  of  their  claims  now."  '-  All  such  should  be 
very  closely  scrutinized;  and  if  they  might  have  availed  themselves  of  the 
law  of  182S,  and  did  not  do  so,  they  ought  not  now  to  receive  your  decree 
in  their  favor." 

A  class  of  Indians  within  the  State  of  Georgia  who  were  dispossessed  of 
their  improvements  and  reserved  lands,  for  which  no  grants  had  issued 
prior  to  the  law  of  Georgia  of  December,  1833,  for  "■  regulating  Indian  oc- 
cupancy," expressly  provided  for  in  the  16th  article  of  the  treaty  of  New 
Echota,  are  alluded  to  in  the  instruction  before  quoted,  and  the  claimants 
are  to  be  cut  o&  from  the  indemnities  promised  by  the  treaty,  by  one  or  the 
other  of  two  presumptions:  1.  That  they  applied  for  the  benefit  of  the 
appropriation  by  Congress  in  1828  to  buy  their  lands,  and  did  sell  to  the 
agents  of  the  United  States.  2.  If  they  did  not,  they  are  to  be  barred  by 
laches  and  length  of  time. 

The  appropriation  alluded  to  is  by  act  of  9th  of  May,  1828.  (Laws 
U.  S.,  vol.  8,  p.  45.)  The  President  was  to  apply  the  appropriation 
of  .$50,U00  "  to  the  extinguishment  of  the  claims  of  the  Cherokee  Indians 
to  all  the  lands  which  they  occupy  within  the  limits  of  the  said  State"  of 
Georgia.  If  the  United  States  bought  their  houses,  improvements,  and 
possessions,  that  affirmative  should  be  proved  by  the  United  States.  The 
Indians  were  not  bound  to  prove  they  did  not  sell,  being  a  negative  inca- 
pable of  being  proved.  They  were  neither  bound  to  sell,  nor  to  apply  to 
the  agents  of  the  United  States  to  try  if  a  bargain  and  sale  could  be  agreed 
upon;  therefore  no  laches  could  be  imputed  to  them.  The  instruction  to 
the  commissioners  to  presume  a  sale  to  the  United  States,  or  to  presume 
laches,  in  bar  of  all  such  claims,  was  an  outrage  upon  the  rights  of  the 
claimants,  and  upon  the  faith  of  the  treaty. 

The  commissioners  were  instructed  by  the  Commissioner  of  Indian 
Affairs,  (Rep.  No.  391,  p.  22,)  that  "claims  which  were  taken  under  the 
treaties  of  1817  and  1819,  (according  to  opinion  of  the  Attorney  General 
of  14th  May,  1839,)  but  which  were  on  the  land  ceded  in  1835,  are  enti- 
tled to  no  compensation  for  the  reservations,  because  they  were  unauthor- 
ized, and  should  have  been  located  on  the  cessions  of  1817  and  1819." 


28  Mis.  No.  8. 

The  opinion  referred  to  (volume  of  Opinions  of  Attorneys  General,  p.  1182) 
does  give  the  construction  to  the  treaty  as  stated  by  Mr.  Crawford.  But 
nevertheless,  Mr.  Attorney  General  and  Mr.  Commissioner  of  Indian  Af- 
fairs are  both  wrong  as  to  the  reservations  under  the  treaty  of  1S17. 

The  Sth  article  of  that  treaty  expressly  allows  the  reservations  "  on  the 
lands  that  are  noiv,  or  that  may  hereafter  be.  surrendered  to  the  United 
States."  The  treaty  of  1819  confines  reservations  to  the  lands  ceded  by 
that  treaty. 

This  erroneous  instruction  has  been  the  source  of  difficulty  and  im- 
proper rejection  of  claims;  and  is  an  example,  among  many  others,  to 
prove  the  impropriety  of  the  course  of  trying  the  rights  of  individuals  by 
opinions  made  up  in  an  executive  chamber,  where  the  individuals  to  be 
aiFected  are  unheard,  and  have  no  opportunity  to  defend  their  rights.  The 
treaty  of  New  Echota  established  a  court  of  commissioners,  wherein  busi- 
ness ought  to  have  been  conducted  openly;  where  the  interpretations  of  the 
treaties  might  have  been  examined  and  discussed  by  both  parties,  so  as  to 
arrive  at  their  true  sense  and  meaning,  so  essential  to  the  due  administra- 
tion of  justice.  The  condemnation  of  whole  classes  of  private  rights  and 
interests  under  the  treaties,  by  such  secret  interpretations  and  destructive 
extra-official  opinions,  and  mandatory  instructions,  sent  to  the  judges  and 
concealed  from  the  claimants,  was  an  innovation  and  assumption  at  war 
with  the  principles  of  natural  justice,  and  in  scorn  of  the  Divine  example 
set  us,  in  not  pronouncing  against  Adam  unheard. 

The  Commissioner  of  Indian  Afiairs  instructed  the  comniissioners,  (re- 
port No.  39],  aforesaid,  p.  20,)  "There  are  no  pre-emption  rights;  they 
were  provided  for  by  the  12th  article  of  the  original  treaty,  but  abrogated 
by  the  first  of  the  supplemental  articles,  and  never  had  more  than  an  in- 
choate existence,  which  is  gone." 

The  rights  of  pre  emptions  of  the  lands  were  parts  and  portions  of  the 
inducements  and  considerations  of  the  treaty  as  concluded  and  signed  on 
the  29th  December,  1835,  whereby  the  Cherokees  ceded  their  lands  to  the 
United  States. 

The  12th  article  relates  to  "  those  individuals  and  heads  of  families  of 
the  Cherokee  nation  that  are  averse  to  a  removal  to  the  Cherokee  country 
west  of  the  Mississippi,  and  are  desirous  to  become  citizens  of  the  United 
States,"  &c.  The  treaty  distinguishes  these  into  two  classes:  1st,  those 
then  residing  in  the  States  of  North  Carolina,  Tennessee  and  Alabama; 
2d,  those  who  then  resided  in  the  State  of  Georgia,  but  were  willing  to 
remove  out  of  Georgia  and  setde  in  North  Carolina^  Tennessee,  or  Ala- 
bama. 

To  the  first  class,  pre-emptions  are  given  of  160  acres,  or  one  quarter  section 
of  land,  to  each  head  of  an  Indianfamily,  to  include  their  present  buildings 
or  improvements.  But  to  the  second  class,  their  pre  emptions  were  not  to 
^e  taken  in  Georgia  to  include  their  buildings  and  improvements  in  that 
State,  but  they  were  to  remove  into  North  Carolina,  Tennessee,  or  Alaba- 
ma; and  therefore  they  were  allowed  the  pre-emption  of  160  acres  of  land 
to  each  head  of  an  Indian  family,  to  be  located  within  two  years,  in  either 
of  those  three  States. 

The  United  States  being  under  an  express  contract  with  Georgia  respect- 
ing the  extinguishment  of  the  Indian  title  to  lands  within  the  State  of 
Georgia,  and  for  the  benefit  of  that  State,  were  not  willing  to  let  the  In- 
dians living  in  Georgia  retain  their  buildings  and  improvements,  with  one 


Mis.  No.  8.  29 

b.undred  and  sixty  acres  around  them,  in  that  State;  but  such  were  to  re- 
move from  Georgia,  and  locate  their  pre-emptions  in  one  of  those  other 
States. 

Hence  the  distinction  between  the  two  classes:  the  one  class  of  pre - 
emptioners  confined  and  located,  to  include  their  exisiing  buildings  and 
improvements;  the  other  class  unlocated,  but  to  be  located  within  two 
years. 

These  settlers  and  improvers  had,  by  the  laws  of  nature,  of  nations, 
the  acknowledgment  of  the  United  States,  and  by  the  laws  and  usages  of 
the  Cherokees,  vested  rights  to  their  buildings  and  improvements,  and 
rights  of  perpetual  occupancy  of  the  soil,  which  was  of  the  common  do- 
main of  the  Cherokee  nation  at  and  before  the  treaty  of  New  Echota  was 
concluded  and  signed,  in  December,  1835. 

By  this  treaty  of  December  these  settlers  and  improvers,  in  common 
with  the  other  Cherokees,  surrendered  their  common  property  in  the  Cher- 
okee country  to  the  United  States,  reserving  to  these  settlers  and  improvers, 
respectively,  these  private  rights  and  interests  of  their  buildings  and  im- 
provements, with  the  pre-emption  of  160  acres  of  land  around  them.  To 
this  the  parties  to  the  treaty  were  consenting;  it  was  one  of  the  considera- 
tions and  inducements  to  the  treaty  of  New  Echota  of  December,  1835. 

These  Indians  had  private  interests  in  their  buildings  and  improvements 
before  the  treaty;  and  by  the  treaty,  when  concluded  and  signed,  they  ac- 
quired additional  and  more  extensive  interests  in  the  fee  simple  as  pre- 
emptioners.  These  rights  of  pre-emption  were  incipient;  they  were  m- 
choafe  lights — that  is,  rights  begun,  existing — for  such  is  the  meaning,  in 
the  legal  sense  as  well  as  in  the  popular  sense.  The  Avord  ''  inchoate  " 
signifies  begun,  commenced.  In  law  there  are  equitable  rights,  or  rights 
begun,  existing,  but  requiring  something  to  be  done  to  complete  and  per- 
fect them  into  legal  titles.  Inchoate  rights  are  property,  respected  by  the 
law,  protected  by  the  law:  they  are  the  subjects  of  agreements  and  sales; 
good  considerations  to  support  assumpsits.  The  idea  that  an  inchoate 
right  is  no  right  at  all,  and  therefore  not  to  be  paid  for  if  taken  away,  not 
to  be  compensated  if  annulled  to  suit  the  policy  of  government,  is  a  nov- 
elty in  jurisprudence;  and  it  may  be  that  the  Commissioner  of  Indian  Af- 
fairs had  some  such  idea  floating  in  his  brain  when,  in  June,  1838,  he  in- 
structed the  commissioners  that  no  payment  should  be  made  for  reserva- 
tions under  the  treaties  of  ISIT  and  1819, 

When  the  President  signified  his  determination  not  to  allow  any  pre- 
emptions and  reservations,  and  his  desire  that  the  whole  Cherokee  people 
should  remove  west,  and  a  negotiation  was  set  on  foot  to  annul  these  pre- 
emptions and  reservations,  they  became  the  very  subjects  of  the  renewed 
negotiation,  for  which  an  equivalent  should  be  offered  by  the  United 
States.  These  pre-emptioners  and  reservees,  whose  rights  and  interests 
were  to  be  annulled,  were  entitled,  by  the  same  principles  of  natural  jus- 
tice, by  the  same  considerations  ot  their  private  rights  in  their  buildings 
and  improvements  which  had  induced  the  I2th  article  of  the  treaty  of  De- 
cember, 1835,  to  have  in  the  new  treaty  to  abolish  their  rights  an  equiva- 
lent compensation  therefor.  The  constitutions,  State  and  federal,  have  sanc- 
tified the  principle  that  private  rights  shall  not  be  taken  for  public  use  with- 
out just  compensation.  This  principle  of  justice  pre-existed ;  it  was  a  dictate 
of  right  reason,  immutable  and  eternal.  Being  so,  the  constitution  of  the 
United  States  has  declared  and  ordained  it  as  sacred,  not  to  be  violated. 


30  Mis.  No.  8. 

Accordingly,  when  the  first  supplemental  article  abolished  these  pre-emp- 
tions and  reservations,  the  third  supplemental  article  provided  a  compensa- 
tion. 

A  sum  of  money  is  allowed  "  in  lieu  of  the  said  reservations  and  pre- 
emptions," which  ''  shall  be  applied  and  distributed  agreeable  to  the 
provisions  of  the  said  treaty."  The  said  reservations  and  pre-emptions 
spoken  of  in  the  third  supplemental  article,  are  those  abolished  by  the 
first  supplemental  article;  and  that  first  supplemental  article  says,  "  It  is 
therefore"  (because  of  the  President's  determination  and  desire  as  afore- 
said expressed)  "  agreed  that  all  the  pre  emption  rights  and  reservations 
provided  for  in  articles  12  and  13  shall  be,  and  are  hereby,  relinquished 
and  declared  void."  In  the  third  article  of  the  supplement  the  participle 
•'  said,"  (aforesaid)  prefixed  to  reservations  and  pre-emptions,  relates  to  the 
next  antecedent,  the  reservations  and  pre-emptions  mentioned  in  the  first 
supplemental  article,  which  are  those  mentioned  in  the  12th  and  13th  ar- 
ticles, and  which  by  the  said  first  article  of  the  supplement  are  "relin- 
quished" and  declared  void. 

These  pre-emption  rights  had  existence,  they  had  begun,  they  were 
^^relinquished,"  by  article  one  of  the  supplement,  in  consideration  of  the 
3d  article  of  the  supplement  particularly,  and  of  all  the  other  articles  in 
general.  To  make  an  interpretation  of  the  1st  article  of  the  supplement  by 
itself,  and,  because  the  pre-emptions  are  thereby  relinquished,  that  no  com- 
pensation shall  be  allowed  for  them,  is  contrary  to  the  axioms  8  and  9. 
The  articles  in  the  original  treaty  and  in  the  supplemental  treaty  are  all 
to  be  taken  together  as  one  whole;  and  the  meaning  and  effect  of  any  one 
article  are  to  be  collected  and  explained  by  others. 

The  Commissioner  of  Indian  Affairs  instructed  the  commissioners  that 
reservations  were  to  be  paid  for,  but  not  pre-emptions.  Why  not  pre-emp- 
tions? He  says  "there  are  no  pre-emption  rights;  they  were  provided  for 
by  the  12th  article  of  the  original  treaty,  but  abrogated  by  the  1st  of  the 
supplemental  articles."  So  were  reservations  abrogated,  and  "  relinquish- 
ed and  declared  void,"  by  that  same  article  1.  But  pre-emptions,  he  says, 
"never  had  more  than  an  inchoate  existence,  which  is  gone."  An  in- 
choate existence  is  not  a  nullity,  is  not  a  nonentity.  An  "  inchoate  ex- 
istence" is  a  begun  existence,  a  commenced  existence.  As  such  it  was 
capable  to  be  transferred,  assigned,  sold,  and  relinquished.  These  pre- 
emptions so  having  an  "inchoate  existence,"  an  existence  begun,  were 
sold  and  "relinquished,"  by  the  1st  supplemental  article,  to  the  United 
States,  in  consideration  of  the  money  mentioned  in  the  3d  supplemental 
article,  together  with  the  considerations  mentioned  in  all  the  other  articles 
in  the  original  and  the  supplemental  treaty,  according  to  axiom  11,  before 
stated. 

After  the  opinion  of  Attorney  General  Legare  before  noticed,  the  cer- 
tificates of  the  commissioners  were  disrespected  at  the  War  Department. 
The  claimants  applied,  by  a  memorial,  to  the  Congress  for  reUef.  Of  these 
doings  a  history  is  given  in  the  report  No.  391,  2Sth  Congress,  1st  session, 
House  of  Representatives,  before  mentioned.  To  that  history  we  refer  for 
the  spirit  of  opposition  made  to  the  claims  under  the  treaty  of  New  Echota 
by  the  Commissioner  of  Indian  Affairs  and  the  Secretary  of  War,  under 
the  specious  pretext  of  reviewing  the  decisions  of  the  commissioners  "  for 
the  single  purpose  of  ascertaining  whether  the  commission  had  jurisdic- 
tion;" and  by  the  "  m/ie/-e«;  power  which  is  necessary  to  discharge  an 


Mis.  No.  8.  31 

imposed  duty,  unless  prohibited  by  law;"  (as  if  the  treaty  of  New  Echota 
with  the  Cherokees  was  no  law  or  rule  of  conduct  for  the  War  Depart- 
ment.) 

This  power  claimed;  with  the  examples,  to  review  the  proceedings  and 
facts  in  the  case  "  for  the  single  purpose  of  ascertaining  whether  the  com- 
mission had  jurisdiction — if  it  had  not,  its  acts  are  void,"  brings  to  mind 
the  fable  of  the  pigs  who  were  well  secured  in  their  house,  with  warning 
by  the  mother  not  to  open  the  door  until  she  returned.  In  the  meantime 
the  fox  entreated  the  pigs  to  be  pleased  to  open  the  door,  only  so  much  as 
to  let  him  put  one  foot  in  to  be  warmed;  after  the  fox  had  one  foot  in,  he 
thrust  his  whole  body  in,  and  devoured  the  confiding  pigs. 

Messrs.  Eaton  and  Hulsley,  the  commissioners,  were  removed  from  office 
by  the  President  on  the  17th  January,  1844. — (See  the  letter  of  J.  M.  Por- 
ter, Secretary  of  War,  to  T.  H.  Crawford,  Commissioner  of  Indian  Af- 
fairs; Senate  doc.  No.  113,  p.  15,  29th  Congress,  2d  sess.,  printed  by  order 
of  the  Senate,  February  3,  1847.) 

From  this  dismissal  the  commission  was  vacant  until  June,  1844,  when 
Messrs.  Mason  and  Washington  were  commissioned  for  one  year,  or  during 
the  pleasure  of  the  President.  From  June,  1845,  the  commission  was 
vpcant  until  July  22,  1846;  then  Messrs.  Harden  and  Brewster  were  com- 
missioned for  one  year,  or  during  the  pleasure  of  the  President;  their  com- 
missions have  expired,  and  the  commission  is  now  vacant. 

Before  these  last  commissioners  commenced  their  sessions,  the  Commis- 
sioner of  Indian  Affairs  (Mr.  Medill)  issued  his  instructions  to  them  in  a 
letter  dated  "  War  Department,  Office  Indian  Affairs,  August  27,  1846." 
(Senate  doc.  No.  113,  29th  Congress,  2d  session;  printed  February  3, 
1847.) 

In  this  letter  of  Mr.  Medill,  Commissioner  of  Indian  Affairs,  the  poison 
of  former  instructions  is  contained,  by  reference  to  them,  with  a  quintes- 
sence distilled  by  himself. 

Mr.  Medill  says:  "The  accompanying  copy  of  a  communication  to  Messrs. 
Carroll  and  Lumpkin  of  1836,  a  copy  of  a  communication  from  this  office 
to  the  second  board  of  28th  September,  1842,  to  be  found  in  House  report 
No.  391,  28th  Congress,  1st  session,  pp.  17  to  24,  and  the  enclosed  copy 
of  a  letter  of  my  predecessor  of  20th  June,  1844,  to  the  third  commission, 
embody  the  views  of  the  department,  at  the  respective  dates,  respecting  the 
various  classes  of  claims  arising  under  the  Cherokee  treaty  of  1835-'36. 

"  Those  views  may  be  modified  in  some  degree  by  the  provision  of  the 
treaty  recently  made  between  the  United  States  and  the  Cherokees;  but  as 
the  law  making  provision  for  the  organization  of  the  present  commission 
provides  for  the  reference  of  any  case  to  the  Attorney  General,  in  which 
you  may  differ  in  opinion,  it  is  not  regarded  by  the  department  as  neces- 
sary to  give  you  special  instructions  in  the  premises. 

"■  I  refer  you,  however,  to  the  House  document  above  named,  at  page 
58,  for  an  opinion  of  Attorney  General  Legare  respecting  \he  jurisdiction  of 
the  commission,  and  the  duties  of  the  executive  officers  in  regard  to  the 
decisions  of  said  board,  and  suggest  that  you  fully  and  freely  advise  with 
this  department  on  the  several  matters  committed  to  you. 

"  In  view  of  the  modification  of  certain  parts  of  tire  treaty  of  1835- '36 
by  that  just  ratified,  and  of  the  change  consequent  thereupon,  it  is  deemed 
advisable  by  tliis  department  that  no  certificates  be  issued  by  your  commis. 


32  Mis.  No.  8. 

sion  on  the  decrees  that  you  may  make,  until  you  shall  be  informed  by  it 
that  there  is  money  in  the  treasury  applicable  to  their  payment." 

The  compensation  to  be  allowed  them  is  there  treated  of  as  contin- 
gent upon  a  ratio  between  the  commissioners  and  their  secretary,  after  de- 
ducting the  contingent  expenses  of  the  board  from  the  appropriation  of 
,11)7,000. 

From  this  letter  and  the  instructions  previously  issued  from  the  office  of 
the  Department  of  War,  through  the  Commissioner  of  Indian  Affairs,  to  the 
commissioners  appointed  successively  under  the  seventeenth  article  of  the 
treaty  of  New  Echota,  it  appears  that  this  court  of  commissioners,  insti- 
tuted by  the  two  contracting  powers,  has  been  treated  and  used  from  the 
beginning,  by  the  Commissioner  of  Indian  Affairs,  as  an  instrument,  sub- 
ject to  orders  and  instructions;  that  the  commissioners  of  the  treaty  were 
kept  in  the  leading-strings  of  the  War  Department.  To  destroy  the  inde- 
pendency of  the  court  of  commissioners,  their  tenure  of  office  has  been 
throughout  "  during  the  pleasure  of  the  President,"  as  expressed  in  their 
commissions,  made  out  and  recorded  in  the  Department  of  War;  and  the 
first  board  was  dissolved  by  order  of  the  Commissioner  of  Indian  Affairs 
of  the  17th  January,  1839,  before  referred  to;  and  the  second  board  was 
dissolved  by  the  removal  of  the  commissioners  from  office  by  the  letter  of 
J.  M.  Porter,  Secretary  of  War,  of  the  17th  January,  1844. — (Senate  doc. 
No.  113,  29th  Congress,  2d  sess.,  p.  15.) 

By  the  constitution  of  the  United  States,  article  6th,  "  all  treaties  made 
or  to  be  made  under  the  authority  of  the  United  States  shall  be  the  su- 
preme law  of  the  land."  By  art.  3,  sec.  2,  the  judicial  power  of  the  United 
States  extends  to  all  cases  arising  under  the  constitution  and  treaties  made 
or  which  shall  be  made  under  their  authority;  by  the  treaty  of  New  Echota 
a  high  judicial  tribunal,  of  transcendent  and  final  jurisdiction,  is  established 
to  examine  and  adjudicate  all  claims  arising  under  the  treaty,  against  the 
United  States;  by  the  treaty,  the  judges  who  are  so  to  examine  and  finally 
adjudicate  are  to  be  appointed  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate  of  the  United  States;  by  art.  3,  sec.  1,  of  the 
constitution,  '■'  the  judges  both  of  the  supreme  and  inferior  courts  shall 
hold  their  offices  during  good  behaviour,  and  shall  receive  for  their  services  a 
compensation  which  shall  not  l:-e  diminished  during  their  continuance  in 
office."  According  to  the  spirit  of  the  constitution  of  the  United  States, 
according  to  the  meaning,  spirit,  and  faith  of  the  treaty  of  New  Echota, 
by  the  reason  of  the  case,  the  judges  of  the  high  court  of  commission  in- 
stituted by  that  treaty  ought  to  have  been  commissioned  otherwise  than 
at  the  pleasure  of  the  President  of  the  United  States.  But  the  fact  that 
the  commissions  were  so  issued  did  not  justify  the  arbitrary  power  assumed 
by  the  Commissioner  of  Indian  Affairs  over  the  commissioners  and  their 
duties,  and  over  the  treaty.  By  this  letter  of  the  27th  August,  1846,  to 
the  commissioners,  Messrs.  Harden  and  Brewster,  they  were  put  under 
instructions  and  in  the  service  of  the  Department  of  War,  as  clay  in  the 
hands  of  the  potter,  to  be  moulded  to  the  purposes  of  the  department. 

The  same  unfaithful  interpretations  of  the  treaty,  the  same  restrictions 
upon  the  powers  of  the  court  of  commissioners,  which  have  been  heretofore 
commented  upon,  were  reiterated  by  Mr.  Medill;  the  same  power  to  revise 
and  annul  their  decisions,  which  had  been  the  subjects  of  examination  and 
animadversion  in  the  report  of  Mr.  Foot,  in  the  Congress,  in  1844,  and 
which  had  been  disavowed  by  the  joint  resolution  reported  from  the  com- 


•c^ 


Mis.  No.  8.  33 

mittee  by  Mr.  Foot,  adopted  by  the  Senate  and  House  of  Representatives, 
and  approved  by  the  President,  before  referred  to,  is  again  assumed  by  this 
letter  of  Mr.  Medill  as  Commissionor  of  Indian  Affairs,  with  these  aggra- 
vations, that  the  commissioners  are  instructe4  that  "  you  fully  and  freely 
advise  with  this  department  on  the  several  matters  committed  to  you;" 
and  "  that  no  certificates  be  issued  by  your  commission  on  the  decrees  you 
may  make  until  you  shall  be  informed  by  it  that  there  is  money  in  the 
treasury  applicable  to  their  payment." 

Is  this  the  high  court  of  commissioners  provided  for  by  the  two  con- 
tracting nations,  by  which  all  claims  under  the  treaty  were  to  b.e  examined 
and  adjudicated?  whose  decisions  were  to  be  final;  whose  certificates  were 
to  be  paid  by  the  United  States?  Do  such  instractions,  such  communica- 
tions, to  the  commissioners  appointed  under  the  treaty,  comport  with  the 
office  and  character  of  judges,  or  the  independence  of  a  judicial  tribunal? 
Do  they  befit  the  honor  and  dignity  and  good  faith  of  the  United  States? 
Do  they  consist  with  the  faith  of  the  treaty  ?  They  are  condemned  by  the 
axioius  1,  'S,  12,  13,  14,  and  15,  before  cited. 

There  is  no  difference  in  the  injury  to  the  Cherokees,  whether  these 
wrongs  were  committed  by  the  blundering  ignorance  of  a  Commissioner  of 
Indian  Affairs,  or  impudently,  knowingly,  and  wirully,  from  a  selfish  liew 
(as  mistaken  as  it  is  low  minded  and  shortsiglitcd)  of  commending  himself 
to  favor  for  having  saved  some  dollars  to  the  public  treasury  at  the  expense 
of  the  honor  of  the  United  States,  and  in  broach  of  the  faith  of  a  treaty 
with  a  power  too  u'eak  and  dependent  to  seek  redress  by  reprisals. 

The  injury  to  the  Cherokees  might  have  been  less,  if  these  instructions 
had  not  been  secreted  from  them  and  their  counsel  until  the  mischief  had 
been  accomplislied. 

Neither  the  report  of  Mr.  Foot,  of  the  Committee  on  Indian  Affairs  of 
the  Mouse  of  Representatives,  nor  the  joint  reso/iition  of  the  Senate  and 
House  of  Representatives,  approved  by  the  President  of  the  United  States, 
of  the  15th  June,  ISll,  nor  the  moral  perceptions  of  the  Commissioner  of 
Indian  Affairs,  could  confine  him  withiu  the  border  of  his  official  duties, 
nor  restrain  him  from  issuing  to  Messrs.  Harden  and  Brewster,  the  com- 
missioners under  the  treaty  of  New  7:i^chota,  the  very  improper  and  gross 
instructions  contained  in  his  letter  of  August  27,  1846. 

The  previous  instructions  therein  referred  to  have  been  noticed,  and 
their  errors  and  improprieties  pointed  out  In  these  instructions  of  Mr. 
Medill,  the  former  instructions  that  the  claims  passed  upon  by  a  former 
board  are  not  within  tlie  jurisdiction  of  the  existing  commission,  together 
with  the  opinion  of  Mr.  Legarc  on  that  subject,  and  the  alleged  duties  "  ot 
the  executive  officers'  in  regard  to  the  decisions  of  the  said  board,"  (that  is, 
to  revise  and  annu^  them  on  the  principles  expressed  in  Mr.  Legare's  opin- 
ion,) are  particularly  noted  and  reiterated. 

Tiie  design  of  this  instructioti  was  to  fasten  upon  the  claimants  the  re- 
jections caused  by  the  previous  erroneous  instructions;  decisions  so  palpa- 
bly erroneous  in  matters  not  suscepfible  of  doubt,  as  that  their  correction 
by  any  court  having  justice  in  view  would  inevitably  follow,  unless  the 
commissioners  should  be  prevented  by  an  instruction  that  such  claims  ar-; 
were  passed  upon  by  a  former  board  were  not  within  the  jurisdiction  of 
the  existing  commission. 

Why  not  have  referred  to  the  refutation  of  Mr.  Ijegare's  opinion,  con- 
tained in  the  report  of  Mr.  Foot,  sustained  by  the  House  and  by  the  Sen- 
3 


34  Mis.  No.  8. 

ate,  and  by  the  passage  of  the  joint  resolution  of  the  Congress?  Was  it 
fair  to  point  to  the  error,  and  to  omit  to  notice  the  refatation;  to  administer 
the  poison  and  omit  to  mention  the  antidote?  Uo  these  instructions  of 
Mr.  Medill  to  Messrs.  Harden  and  Brewster  comport  with  a  spirit  and  de- 
sire to  administer  justice  fairly  and  impartially?  Do  they  comport  with  a 
decent  respect  for  the  joint  resolution  of  15th  of  June,  1S44,  with  that 
obedience  to  the  law  which  becomes  a  public  officer?  Do  they  exhibit 
respect  for  the  court  of  commissioners  establislied  by  the  treaty?  or  an  inten- 
tion to  sufter  the  treaty  to  be  fulfilled  in  honesty  and  good  faith?  or  that 
regard  for  the  good  faith  of  the  United  States,  and  of  the  obligation  of  the 
Jaws,  which  should  be  observed  by  a  public  officer  of  the  United  States? 
Do  they  not  bear  internal  evidence  of  an  arbitrary  will,  and  of  the  absence 
of  some  of  the  qualifications  essential  to  a  Commissioner  of  Indian  Affairs, 
the  want  of  which  freezes  the  generous  confidence  of  a  people  and  turns  it 
into  apprehension  and  fear?  To  these  questions  the  Congress  and  Presi- 
dent of  the  United  States  may  respond;  to  propound  them  is  the  painful 
duty  of  your  memorialists. 

The  first  reading  of  the  instruction  not  to  issue  certificates  until  in- 
formed by  the  department  "  that  there  is  money  in  the  treasury  applicable 
to  their  payment,"  would  leave  the  impression  that  there  was  a  failure  of 
appropriation  by  Congress  to  that  object.     The  truth  is  otherwise. 

i'he  Congress  by  act  of  2d  July,  1836,  appropriated  four  million  five 
hundred  thousand  dollars,  according  to  the  effect  of  the  first  and  second 
articles  of  the  treaty  of  New  Echota  of  1S35-'G. 

Also,  in  the  same  act,  the  further  sum  of  .$600,000  was  appropriated  to 
pay  for  removals  and  spoliations,  according  to  the  tliird  supplemental  arti- 
cle; and  by  the  act.  of  12th  June,  183S,\he  further  sum  of  $1,047,067 
was  appropriated  "  for  all  objects  specified  in  the  third"  supplemental  arti- 
cle, and  for  aiding  the  subsistence  of  the  Indians  after  their  removal  west. 
(See  9th  vol.  Laws  U  S.,  pages  453  and  778 — edition  by  Clerk  of  House 
of  Representatives.) 

The  books  of  the  Treasury  Department  show  that  those  appropriations 
were  not  exhausted  by  payments  to  the  objects  of  appropriations,  neither 
at  the  date  of  Mr.  -Medill 's  letter,  mr  when  the  commission  expired  in 
July,  1847,  and  that  they  are  not  now  exhausted.  Neither  were  the  ap- 
propriations for  the  objects  of  the  third  supplemental  article  exhausted  by 
payments  to  the  objects  of  appropriation  at  ii>j-  date  of  Mr.  MedilTs  letter  to 
the  commissioners,  nor  are  they  now  exhausted.  As  to  the  treaty  of  Wash- 
ington then  lately  concluded,  bearing  date  August  6,  1846,  there  is  noth- 
ing in  it  to  arrest,  or  in  any  manner  to  impede,  the  examinations  and 
adjudications  by  the  commissioners  under  the  treaty  of  1835-'36,  or  to 
divert  the  appropriations  which  had  been  theretofore  made  by  the  Congress 
from  the  objects  for  which  they  had  been  so  made.  An  account  in  full  of 
the  whole  sum  of  $6,647,067  was  thereby  prouiised  the  Cherokees,  but 
that  account  and  settlement  was  to  be  credited  by  all  sums  which  had  been, 
"  or  maybe  hereafter,  properly  allowed  and  paid  under  the  treaty  of  1835;" 
and  by  the  tenth  article  it  was  explicitly  declared  that  the  rights  and  claims 
which  the  Cherokees  then  residing  in  the  States  east  of  the  river  Missis- 
sippi had,  or  may  have^  shall  not  thereby  be  in  any  manner  taken  away 
or  abridged. 

VVliy,  then,  refer  to  the  treaty  then  lately  executed  as  an  excuse  for  the 
instruction  to  the  commissioners  not  to  issue  certificates  until  informed  by 


Mis.  No.  8.  35 

■the  department  "  that  there  was  money  in  the  treasury  appHcable  to  their 
payment?"  The  mere  account  promised  by  that  treaty  recently  made 
has  nothing  starthng  in  it  to  the  department,  unless  the  specific  appropria- 
tions tor  the  objects  mentioned  liad  been  misappHed  or  wasted,  or  diverted 
from  the  specific  objects  of  the  appropriations.  Did  the  Commissioner  of 
Indian  Affairs  intend  by  his  words  to  insinuate  that  the  appropriations 
aforementioned  had  been  wasted  or  misappHed? 

But  if  such  misappUcation  or  waste  had  been  committed,  the  Cherokee 
claimants  ought  not  to  have  been  delayed  or  hindered  in  obtaining  their 
certificates,  the  evidences  of  their  demands,  by  any  such  misconduct  of 
the  officers  of  the  United  States. 

Whether  there  was  or  was  not  money  in  the  treasury  applicable  to  the 
payment  of  the  certificates  of  the  commissioners,  was  a  question  which  had 
no  connexion  with  their  duties;  they  did  not  pay  them,  nor  look  after 
their  payment.  That  belonged  to  the  duties  of  the  Secretary  of  the  Trea- 
sury under  the  joint  resolution  of  the  two  Houses  of  the  Congress,  approved 
June  15,  IS44.  The  claimants  were  entitled  to  their  certificates  upon  ad- 
judications in  their  favor.  If  presented  at  the  treasury  for  payment,  the 
Secretary  of  the  Treasury  had  the  power  and  the  will  to  cause  them  to  be 
paid.  If  the  appropriations  for  that  object  had  been  misapplied  and  di- 
verted to  other  objects,  or  wasted,  it  was  the  duty  of  the  Secretary  to  look 
into  that  m.atter;  the  claimants  could  not.  If  the  certificates  when  presented 
were  not  paid,  the  claimants  having  the  certificates  could  apply  to  the  Con- 
gress, as  they  had  been  compelled  to  do  before.  The  claimants  in  applying 
to  the  Congress  tor  redress  would  not  apply  in  vain.  When  the  holders  of 
the  certificates  of  the  commissioners  had  asked  the  Congress  for  their  bread^ 
that  department  of  the  govertimeut  had  not  given  them  a  stone. 

When  the  true  state  of  the  facts  are  looked  to,  when  it  is  considered  the  state 
of  the  treasury  cannot  al^er  the  treaty,  nor  curtail  the  jurisdiction,  powers  and 
duties  of  the  court  of  commissioner.^,  the  allusion  to  the  late  treaty  and  the 
state  of  the  treast^^y  turns  owt  to  be  an  artful  use  of  equivocal  language  to 
avoid  a  direct  and  positive  assertion  of  that  which  was  untrue,  and  yet  give 
a  gloss  for  the  instruction  not  to  issue  certificates  until  informed  by  the  War 
Departme^*it  as  to  the  state  of  the  treasury. 

By  this  instruction  against  issuing  certificates  until  informed  by  the  De- 
partment of  War  '^  that  there  is  money  in  the  treasury  applicable  to  their 
pavment,"  (a  matter  belonging  properly  to  the  Department  of  the  Treasury,) 
united  with  the  odier  instruction  to  the  comuiissioners,  "  that  you  advise 
lully  and  freely  with  this  department  on  the  several  matters  committed  to 
you,"  the  power  is  retained  to  the  War  Department  to  revise,  alter  and  con- 
trol the  decisions  of  the  commissioners  at  tlie  pleasure  of  that  department,  as 
being  colorably  the  acts  of  the  commissioners  themselves,  "l^'hat  department 
did  not  desire  again  to  adventure  so  far  as  of  itself,  and  by  its  own  "  power 
inherent,"  to  revise  and  annul  the  decisions  of  the  commissioners  after  the 
certificates  had  issued  to  the  several  claimants.  The  joint  resolution  of 
June  15,  1S44,  would  stand  in  the  way  of  such  after  revisal  and  annulling. 
The  holders  of  the  certificates  would  then  have  the  law,  the  rule  of  conduct 
prescribed  by  that  joint  resolutioji,  on  their  side,  in  oppositimi  to  the  con- 
duct of  the  War  Department  in  attempting  to  refuse  payment  of  the  certifi- 
cates in  the  hands  of  the  holders. 

These  instructions  taken  together,  or  singly,  were  in  their  design  and 
effects  arbitrary  assumptions  of  power,  unwarrantable  interlerences  with 


86  Mis.  No.  8. 

the  duties  of  the  court  of  commissioners  estabhshed  by  the  treaty,  a  hire- 
drance  and  delay  to  the  claimants,  and  a  breach  of  good  faith,  against  which, 
and  against  all  similar  acts  in  future,  the  claimants  under  the  treaty  have- 
a  right  to  expect  protection  from  the  government  of  the  United  States. 

By  the  reason  of  the  case,  by  necessary  implication  and  consequence  of 
the  treaty,  the  court  of  commissioners  should  have  been  independent  of  the 
will  and  pleasure  of  the  President  of  the  United  States.  By  like  reason  and 
implication,  and  the  settled  opinions  of  mankind  respecting  the  administra- 
tion of  justice  by  a  judicial  tribunal,  the  proceedings  of  the  court  of  commis- 
sioners should  have  been  open  and  public,  with  the  benefit  of  counsel  to 
the  claimants,  (who  were  of  themselves  not  qualified  to  manage  their  claims 
before  the  court;)  they  had  a  right  to  hear  the  objections  made  to  their 
claims,  and  to  combat  the  objections.  The  conducting  of  the  business  in 
conclave,  and  by  private  instructions  and  advisements  between  the  Com- 
missioner of  Indian  Affairs  or  the  Secretary  of  War  and  the  court  of  com- 
missioners, was  an  outrage  upon  the  treaty  and  a  mockery  of  justice. 

By  these  secret  doings,  the  faith  of  the  treaty,  its  meaning,  soul  and  spirit^ 
and  the  dignity  of  the  courtof  the  treaty,  have  been  wounded  and  insulted 
as  deeply  as  the  spirit  of  the  constitution  of  the  United  States  would  be,  if 
the  President  of  the  United  States  should,  in  cases  in  which  the  United 
States  was  party  defendant  in  the  Supreme  Court  of  the  United  States, 
send  his  instructions  to  the  justices  of  that  court  as  to  the  decisions  they 
should  give,  directing  them  not  V)  grant  rehearings,  nor  rearguments,  nor 
to  take  cognizance  to  review  cases  v/Uich  had  been  adjudged  in  favor  of  the 
United  States,  nor  to  issue  execution  until  advised  so  to  do  by  the  Presi- 
dent, and  instructing  the  justices  to  advise  fully  and  freely  with  him  re- 
specting the  matters  pending  before  them. 

Fortunately  for  the  citizens  of  the  United  States,  the  judges  of  the  courts 
of  the  Union  hold  their  offices  during  good  behavior;  the  President  cannot 
remove  them  at  his  pleasure;  their  salaries  are  fixed,  and  can  not  be  taken  from 
them  during  their  good  behavior,  nor  diminished,  fortunately  for  the 
people  of  the  United  States,  the  moral  sense  of  the  President  would  not 
allow  him  to  make  such  communications  to  the  justices  of  th-at  august  tri- 
bunal, and  his  common  sense  teaches  that  such  an  offence  would  meet 
with  merited  contempt,  disgrace  and  punishment. 

Unfortunately  for  the  Cherokees,  the  moral  sense  of  the  Commissu-ner  of 
Indian  Alfairs,  for  three  successions,  did  not  shrink  from  plying  the  com- 
missioners successiA^ely  appointed  under  the  treaty  of  New  Echotawith  iti- 
structions  and  directions,  and  erroneous  interpretations,  in  violation  of  the 
treaty,  to  the  grievous  injury  of  the  claimants  and  in  disregard  of  the  good 
faith  of  the  United  States.  Most  unhappily  for  the  Cherokees,  the  com- 
missioners, the  jndges  of  the  court  instituted  by  the  treaty  of  New  Echota, 
have  been  commissioned  to  hold  their  offices  at  the  pleasure  of  the  President 
of  the  United  States,  and  have  been  made  to  understand  and  believe  that 
their  continuance  in  the  enjoyment  of  the  emoluments  of  their  offices  de- 
pended upon  their  obedience  to  the  instructions  so  issued  by  the  Commis- 
sioner of  Indian  Affinis. 

The  good  Book  instructs  us,  "  Where  a  man's  treasure  is,  there  his  heart 
will  be  also."  Man  is  frail,  and  liable  to  fall  if  placed  in  the  way  of  temp- 
tation. And  though  those  are  criniinal  who  do  not  withstand  the  tempta- 
tion, neither  are  those  innocent  who  lay  the  bait  in  their  way.  For  the 
honor  of  human  nature,  there  are  men  firm  and  resolved  in  the  right,  inflex- 


Mis.  No.  8.  37 

ible  to  ills,  and  obstinately  just.  That  such  are  comparatively  so  few,  the 
■Cherokee  claimants  under  the  treaty  of  New  Echota  have  abundant  cause 
to  lament. 

Instructions  issued  under  the  seeming  authority  of  the  War  Department 
are  imposing,  although  the  authority  in  the  particular  case  has  been  exer- 
cised in  contravention  of  law  and  in  violation  of  the  faith  of  a  treaty.  But 
when  those  over  whom  such  illegal  authority  has  been  exercised  stood  as 
guardians  and  protectors  of  th-e  rights  of  others,  and  have  tamely  submitted 
because  their  intellect  or  their  moral  sense  was  obtuse,  and  their  love  of 
place  and  emoluments  of  otilce  was  more  acute,  and  when  those  whose 
rights  have  been  trampled  upon  by  such  usurpation  could  not  resist  be- 
cause ihiiiy  had  no  knowledge  of  it  until  the  designed  mischief  was  accom- 
plished, the  government,  whose  officers  have  under  color  of  its  authority 
and  in  its  name  so  abused  their  places  and  done  injuries  to  individuals,  is 
bound  to  vindicate  its  honor,  justice,  and  public  faith,  by  redressing  the  in- 
juries. 

The  written  interpretations  of  the  treaty,  and  the  written,  instructions 
§iven  to  the  court  of  commissioners  by  the  Commissioner  of  Indian  Alfairs 
which  were  secreted  from  the  claimants,  have  at  length,  by  the  authority  of 
the  Congress,  'been  drawn  forth,  piecemeal,  from  the  recesses  of  the  bureau 
of  Indian  affairs,  and  published;  but  of  the  unwritten  versions  of  the  treaty 
and  unwritten  instructions  (now  attempted  to  be  excused  under  the  name 
of  suggestions,  as  if  names  could  alter  the  substance  and  essence  of  things) 
which  M^ere  imposed  upon  the  court  of  commissioners  in  the  various  advise- 
ments '^  fully  and  freely"  held  from  time  to  time  with  the  War  Depart- 
ment, we  knovv^  nothing  except  by  the  oiitcomings. 

Of  these  -advisements  imposed  by  th«  department  on  the  court  of  com- 
missioners, the  most  prominent  arise  out  of  the  constructions  of  the  treaties 
of  1817  and  1819,  by  which  forfeitures  for  removals  are  worked.  These 
forfeitures  are  extended  to  the  fee  simple  of  the  children,  for  the  offences  of 
the  heads  of  Indian  families  who  owned  only  a  life  estate.  In  the  rage 
for  forfeitures,  whereby  to  increase  the  quantity  of  lands  ceded  by  the 
•Cherokees,  and  to  decrease  the  payments  by  the  Ignited  States  to  the 
-Cherokees,  m.o  regard  is  paid  to  the  legislative  acts  of  the  several  States  to 
-appropriate  the  lands  reserved  to  the  Cherokees  within  the  borders  of  those 
States,  respectively.,  to  the  public  domain  of  the  Stales,  and  to  sell  it  out  as 
■such,  not  to  the  public  history  of  the  proceedings  under  those  laws;  inso- 
much, that  the  Indians,  instead  of  being  confronted  by  evidence  to  fix  upon 
them  a  voluntary  removal  and  abandonment  of  their  reservations,  are  sub- 
jected to  forfeitures  by  presumption,  unless  they  can  repel  the  presumption 
ijy  proof  of  an  expulsion  by  force  of  arms,  A  private  sale  by  an  Indian 
head  of  a  family,  owning  but  an  estate  for  life,  is  made  to  bar  the  fee  sim- 
ple remainder  of  tlie  children^  notwithstanding  the  twelfth  section  of  the 
act  of  Congress  of  the  30th  March,  1802,  (vol.  3,  p.  4G3,  Bioren's  edition,) 
had  prohibited  any  purchase,  ^rant,  or  conveyance  of  land  from  any  In- 
dian wiihin  the  bounds  of  the  United  States,  and  declared  any  such  pur- 
chase void  "  unless  made  by  treaty  or  convention  entered  into  pursuant  to 
the  constitution." 

The  Cherokees  insist  that  the  removals  prohibited  by  the  treaty  of  1817 
were  removals  from  the  east  side  of  the  river  Mississippi,  westward  to  the 
Cherokee  country  on  the  Arlcansas  river;  that  the  prohibition  was  tempo- 
;rary,  and  ceased  by  the  treaty  of  1S19.     The  claimants  of  reservations  in- 


38  Mis.  No.  a 

sist  that  the  estate  in  remainder  in  fee  to  tlie  children  could  not  be  forfeited',, 
sold,  conveyed,  or  defeated,  after  the  treaty  of  1S19,  by  any  act  of  the 
owner  of  the  lesser  estate  fo?  life. 

These  questions  have  been  raised  in  the  War  Department,  decided  in 
favor  of  the  government,  without  opportiniity  to  the  Clierokee  claimants  to 
be  heard  in  defence  of  their  rights,  and  imposed  by  the  department  on  the 
commissioners  as  dogmas,  to  be  rules  of  their  decisions,  under  the  penalty 
of  dismissal  from  office  hanging  in  terrorem  over  their  heads.  Against, 
such  back  stairs  influence  exerted  by  the  War  Deparim.ent,  against  such 
interpretations  of  the  treaties,  tlie  Cherokee  claimants  do  solemnly  protest^ 
and  appeal  to  the  justice  and  good  faith  of  the  government  of  the  United 
States. 

The  preamble  to  tlie  treaty  of  ISIT  explains  die  reason  and  scheme  of 
the  treaty.  The  Cherokee  nation  had  agreed  to  divide  into  two  nations 
the  Cherokees  east  of  the  river  Mississippi,  and  the  Cherokees  west  of  that 
river,  on  the  Arkansas,  and  to  divide  their  lands  east  of  the  Mississippi^ 
and  their  annuides,  between  the  two  parts,  in  proportion  to  the  numbers 
of  those  who  remained  east  and  those  who  had  gone  and  who  should  re- 
move west;  the  proportion  of  the  lands  east  of  the  Mississippi  belonging 
to  the  Cherokees  west  and  who  should  remove  west  to  be  ceded  to  the 
United  States,  in  exchange  for  lands  of  the  United  States  on  Arkansas.. 
The  preamble  explains  what  was  meant  by  removing.  It  speaks  of  the 
part  of  the  Cherokee  nation  v<^est,  "  including,  with  those  now  on  the 
Arkansas,  those  who  are  about  to  remove  thither.''^  Here  is  a  clear  and 
distinct  explanation  of  the  removal  spoken  of  in  the  articles  of  the  treaty. 

The  1st  and  2d  articles  cede  to  the  United  States  two  tracts  of  country^ 
by  defined  boundaries,  as  part  of  the  portion  of  the  lands  assigned  to  the 
Cherokees  west  and  who  intended  to  remove  west;  the  additional  quantity 
of  lands  to  be  allotted  to  the  Cherokees  v.'est  and  who  desired  to  remove 
west,  and  to  be  ceded  to  the  United  States,  was  to  have  been  ascertained 
and  proportioned  according  to  a  census  of  the  Cherokees  east  and  west; 
and  the  3d  article  stipulates  "^  that  a  census  shall  be  taken  of  the  whole 
Cherokee  nation  during  the  month  of  June,  IS  IS."  "-The  census  of  those 
on  the  east  side  of  the  Mississippi  river"  was  to  have  been  taken  by  a  com- 
missioner "  appointed  by  the  President  of  the  United  States,  and  a  com- 
missioner appointed  by  the  Cherokees  on  the  Arkansas  river;  and  the- 
census  of  the  Cherokees  on  the  Arkansas  river  and  those  rewoHvg  there,. 
and  who  at  that  time  declare  their  intention  of  removing  there,  shall  be 
taken  by  a  commissioner  appointed  by  the  President  of  the  United  States^ 
and  one  appointed  by  the  Cherokees  east  of  the  Mississippi  river."  In 
this,  what  is  meant  by  removing  is  clearty  seen  to  be  a  removal  from  the 
east  side  of  the  Mississippi  to  Arkansas. 

The  4th  article  declares  that  the  aanuities  to  the  Cherokees  shall  be 
divided  and  apportioned  between  the  two  parts  of  the  nation  "in  propor- 
tion to  their  numbers,  agreeable  to  the  stipulations  in  the  third  article  of 
this  treaty;  and  the  lands  to  be  apportioned  and  surrendered  to  the  United 
States  agreeably  to  the  aforesaid  enumeration,  as  the  proportionate  part, 
agreeable  to  their  numbers,  to  which  those  who  have  removed,  and  who 
declare  their  intention  to  remove,  have  a  just  right,  including  these  Avith 
the  lands  ceded  in  the  first  and  second  articles  of  this  treaty."  Here  agair* 
is  a  clear  explanation  of  what  is  n:ieant  by  removing.  It  is  a  removal  fiom 
the  east  side  of  the  Mississippi  to  Arkansas. 


Mis.  No.  8.  3& 

Article  5  stipulates  that  the  United  States  shall,  for  the  lands  ceded  in 
the  first  and  second  articles,  and  which  they  may  thereafter  receive  as  the 
portion  of  that  part  of  the  Cherokee  nation  on  the  Arkansas,  give  as  much 
lands,  acre  for  acre,  in  exchange,  on  the  Arkansas  and  White  rivers,  "as 
the  just  proportion  due  that  part  of  the  nation  on  the  Arkansas,  agreeable 
to  tlieir  numbers." 

Article  G  stipulates  that  the  United  States  shall  pay  "all  the  poor  war- 
riors who  may  renwve  to  the  western  side  of  the  Mississippi  river,"  to  each 
a  rifle,  ammunition,  a  blanket,  brass  kettle,  or  in  lieu  of  the  kettle  a  beaver 
trap,  ''as  a  full  compensation  for  the  improvements  they  may  leave;" 
"and  to  those  emigrants  whose  improvements  add  real  value  to  their  lands, 
tlie  United  States  agree  to  pay  a  full  valuation  for  the  same,  to  be  ascer- 
tained," «fcc. 

Article  7  stipulates  that  the  United  States  shall  pay  "for  all  improve- 
ments which  add  real  value  to  tlie  lands  lying  within  the  boundaries  ceded 
by  the  first  and  second  articles,"  to  be  valued  as  in  the  preceding  article^ 
"  or,  in  lieu  thereof,  to  give  in  exchange  improvements  of  equal  value, 
which  the  emigrants  may  leave,  and  for  which  they  are  to  receive  pay;" 
and  that  "all  these  improvements  left  by  the  emigrants  within  the  bounds 
of  the  Cherokee  nation  east  of  the  Mississippi  river,  which  add  real  value 
to  the  lands,  and  for  which  the  United  States  shall  give  a  consideration, 
and  not  so  exchanged,  shall  be  rented  to  tlie  Indians  by  the  agent,  year 
after  year,  for  the  benefit  of  the  poor  and  decrepit  of  that  part  of  the  nation 
east  of  the  Mississippi  river,  until  surrendered  by  the  nation,  or  to  tlie  na- 
tion;" "that  the  said  Cherokee  nation  shall  not  be  called  upon  for  any 
part  of  the  consideration  paid  for  said  improvements  at  any  future  period." 
In  all  these  articles  the  meaning  of  removing  is  clearly  seen  to  be,  a 
removal  from  the  east  side  of  the  Mississippi  river  to  the  west,  on  the  Ar- 
kansas. 

By  article  8  it  is  stipulated,  that  to  each  and  every  head  of  an  Indian 
family  residing  on  the  east  side  of  tlie  Mississippi  river,  on  the  "  lands 
that  are  now  or  may  hereafter  be  surrendered  to  the  United  States,  who 
juay  wish  to  become  citizens  of  the  United  States,  the  United  States  do 
agree  to  give  a  reservation  of  six  hundred  and  forty  acres  of  land,  in  a 
square,  to  include  their  improvements,  which  are  to  be  as  near  the  centre 
of  a  square  as  practicable,  in  which  they  will  have  a  life  estate,  with  a  re- 
version in  fee  simple  to  their  children,  reserving  to  the  widow  her  dower, 
the  register  of  wliose  names  is  to  be  filed  in  the  ofTice  of  the  Cherokee 
agent,  which  shall  be  kept  open  until  the  census  is  taken  as  stipulated  in 
tlie  third  article  of  this  treaty:  Provided,  Tliat  if  any  of  the  heads  of  fami- 
lies, for  whom  reservations  may  be  made,  should  remove  therefrom,  then 
and  in  that  case  the  right  to  revert  to  the  United  States.  And  provided 
further,  That  the  land  which  may  be  reserved  under  this  article  be  de- 
ducted from  the  amount  which  has  been  ceded  under  the  first  and  second 
articles  of  this  treaty." 

There  is  no  good  cause  for  affixing  to  the  removals  spoken  of  in  this 
article  a  sense  different  from  the  removals  spoken  of  in  all  the  former  arti- 
cles ;  on  the  contrary,  there  are  cogent  reasons  for  giving  tlieni  the  same 
sense  and  meaning. 

A  removal  of  a  family  from  one  place  necessarily  implies  a  removal  to 
another  place.  That  place  to  which  the  removal  in  this  eighth  article 
alludes,  is  to  the  Indian  nation  west,  on  the  Arkansas.     Such  are  the  re- 


40  Mis.  No.  8. 

movals  treated  of  in  the  preceding  articles;  and,  according  to  axiom  Sth, 
they  shall  explain  the  meaning  of  the  eighth  article.  The  uniform,  steady 
train  of  thought  throughout  the  third,  fourth,  fifth,  sixth,  seventh,  and 
eighth  articles,  relates  to  the  division  to  be  made  between  the  eastern  and 
the  western  Cherokees;  between  those  of  the  Cherokees  east  of  the  Mis- 
sissippi and  those  w^est  on  the  Arkansas,  and  those  to  remove  fro'm  the 
east  side  of  the  Mississippi  to  Arkansas.  Such  removing  from  the  eastern 
nation  to  the  western,  on  the  Arkansas,  is  the  burden  of  the  treaty;  the 
concern  of  the  census;  the  regulator  of  the  exchange  of  lands;  the  index 
to  the  improvements  which  the  United  States  were  to  pay  for;  the  numera- 
tor and  denominator  of  the  division  between  the  eastern  and  v/estern  Cher- 
okees, and  between  the  United  States  and  the  Clicrokees,  east  and  west. 

The  proviso  forbidding  removal  immediutely  succeeds  the  declaration 
that  the  register  for  reservations  shall  be  kept  open  until  the  census  is  taken 
according  to  the  third  article,  and  that  census  relates  to  and  is  to  include 
those  who  shall  remove  to  Arkansas,  with  those  who  were  already  there. 
The  proviso  has  a  direct  and  close  connexion  with  removals  to  Arkansas, 
and  to  the  census  to  be  taken  of  ihose  who  should  be  found  thtre.  The 
proviso  upon  the  proviso,  which  follows  the  forfeiture  for  removals  from  the 
reservations,  declares  the  reservations  shall  be  deducted  from  the  lands 
ceded  by  the  Cherokees  to  the  United  States  by  the  first  and  second  arti- 
cles, which  shows  that  the  forfeiture  for  removing  from  reservations  is  con- 
nected with  and  a  part  of  the  system  for  regulating  how  much  land  the  Cher- 
okees then  at  Arkansas,  and  who  should  remove  there,  should  have  for 
their  portion,  and  consequently  how  much  the  whole  nation  were  to  cede 
to  the  United  States  in  addition  to  that  ceded  by  the  first  and  second  arti- 
cles. Removal  to  Arkansas  was  the  important  subject,  wherein  the  east- 
ern Cherokees,  the  western  Cherokees,  and  the  United  States  were  sever- 
ally interested. 

There  is  a  uniform,  steady  train  of  thought  in  tliis  8th  article,  connect- 
ing the  census  of  the  third  article,  the  cession  to  the  United  States  of  lands 
east  of  the  Mississippi,  to  be  apportioned  by  that  census  according  to  the 
4th  article,  and  to  be  paid  for  by  the  United  States  by  lands  on  the  Ar- 
kansas in  exchange,  acre  for  acre,  according  to  the  5th  article,  and  a  deduc- 
tion of  the  reservations,  according  to  this  8th  article,  from  the  quantity 
chargeable  to  the  United  States  of  lands  east  of  the  Mississippi,  to  be  paid 
for  in  lands  on  the  Arkansas.  The  removal  of  Indian  families  so  treated 
of  in  the  8th  article  is  a  mixed  mode,  a  concrete  term  of  expression, 
uniting  in  the  mind  several  ideas  into  one  combination  of  thought,  in- 
cluding the  census  of  the  Cherokees  on  the  Arkansas,  and  those  who 
shall  remove  there,  the  time  of  removal,  so  as  to  be  found  at  Arkansas 
when  the  census  shall  be  taken,  the  apportionment  of  lands  east  of  the 
Mississippi,  the  lands  to  be  given  in  exchange  on  Arkansas,  and  the  de- 
ductions therefrom  of  the  quantity  of  the  reservations  not  to  be  charged  to 
the  United  States,  and  not  to  be  paid  for  as  any  part  of  the  cession  to  the 
United  States.  All  these  several  and  distinct  ideas  of  time,  place,  and  cir- 
cumstance, are  blended  and  combined  in  the  manner  of  the  giving  of  res- 
ervations and  the  proviso,  and  the  proviso  upon  the  proviso.  Removal  of 
a  family  is,  in  itself,  a  complex  idea,  a  mixed  mode,  including  an  aban- 
doning of  a  habitation  at  one  place,  the  njaking  of  a  habitation  at  another 
place,  with  the  time  between  the  removal  from  the  one  place  to  the  setting 
down  at  the  place  removed  to.     The  place  to  be  abandoned  and  removed 


Mis.  No.  8.  41 

from  is  the  Cherokee  country,  and  land  east  of  the  Mississippi  river;  the 
place  to  be  removed  to  is  the  Cherokee  nation  on  the  Arkansas  river;  the 
time  of  such  removal  is  after  rea;istering  for  reservations  and  before  the 
census  should  be  taken  of  the  Cherokees  in  the  country  on  the  Arkansas 
river.  To  introduce  any  other  place  and  any  other  time  as  being  appli- 
cable to  the  removals  interdicted,  would  break  the  uniform,  steady  train  of 
thought,  and  bring  in  unreasonable  restrictions. 

If,  after  families  were  registered  on  the  east  side  of  the  Mississippi  for 
reservations,  the  same  families  should  remove  to  the  western  nation  of 
Cherokees  on  the  Arkansas  before  the  census  was  taken  and  completed, 
and  tliereby  become  enumerated  with  the  western  Cherok'ees,  the  ratio  of 
the  apportionment  of  the  lands  east  of  the  Mississippi,  between  the  Chero- 
kees east  and  the  Cherokees  west,  as  well  as  the  apportionment  of  the  an- 
nuity agreed  to  be  made  by  the  4tli  article,  would  have  been  deranged; 
and  the  cession  of  the  lands  to  the  United  States  as  the  portion  of  the 
western  Cherokees,  and  the  quantity  of  lands  to  be  given  by  the  United 
States  on  Arkansas  river,  in  exchange  therefor,  would  have  been  disturbed 
and  disarranged. 

Such  registration  for  reservations,  deducted  from  the  lands  ceded  by  the 
1st  and  2d  articles,  diminished  the  quantity  left,  which  the  United  States 
were  to  pay  for,  and  the  removals  of  those  same  families  to  Arkansas  be- 
fore the  census  was  there  completed  would  have  swelled  the  numbers  of 
the  Cherokees  on  Arkansas  in  the  census  there  taken;  whereby  the  por- 
tion of  the  western  Cherokees  on  Arkansas  would  have  been  increased, 
and  the  portion  of  the  Cherokee  nation  east  of  the  Mississippi  would  have 
been  decreased.  Moreover,  those  registering  for  reservations,  and  there- 
after removing  west  to  Arkansas  before  the  census  of  the  Cherokees  was 
there  completed,  if  permitted,  notwithstanding  such  removal,  to  retain 
their  reservations,  would  have  received  not  only  those  reservations,  but 
their  common  interest  in  the  public  domain  of  the  western  nation  of 
Cherokees,  increased  by  their  removal  to  Arkansas.  The  injustice  to  the 
eastern  Cherokees  would  have  been  increased  by  such  removals  to  Arkan- 
sas, after  registration  for  reservations,  and  before  the  census,  if  such 
families  so  removing  had  been  permitted  to  retain  their  reservations;  first, 
because  the  reservations  were  to  be  deducted  out  of  the  quantity  ceded  by 
the  1st  and  2d  articles  of  the  treaty  of  1817,  and  the  eastern  Cherokees 
would  have  been  bound  to  make  a  further  cession  to  the  United  States, 
conseqnent  u}5on  the  increased  number  of  the  Cherokees  on  Arkansas 
accrued  upon  such  removals  before  the  census. 

It  is  worthy  of  notice  that  the  treaty  of  1817  was  concluded  and  signed 
on  the  8t,h  of  July,  1817,  and  ratified  26th  of  December,  1817,  affording 
time  and  opportunity  to  file  their  names  with  the  agent  of  the  United 
States,  as  electing  to  take  reservations,  and  thereafter  to  remove  to  Arkan- 
sas before  the  census  appointed  for  the  month  of  June,  1818,  which  time 
for  the  census  was  kept  open  until  the  treaty  of  27th  of  February,  1819, 
and  then  finally  dispensed  with,  and  the  time  to  take  reservations  pro- 
longed until  the  end  of  the  year  1819  by  the  7th  article  of  that  treaty. 

To  prohibit  removals  from  the  east  side  of  the  Mississippi  to  Arkansas 
after  registration  for  reservations,  and  before  the  apportionment  of  the 
lands  and  annuities  was  finally  adjusted,  and  to  inflict  the  penalty  of  for- 
feiture of  the  right  upon  such  premature  removals,  was  reasonable  and 
proper,  so  that  such  persons  so  registering  for  reservations  should  not  re- 


42  Mis.  No.  8. 

ceive  double  portions,  one  on  the  east  of  the  Mississippi  and  another  in  the 
common  property  of  the  lands  on  Arkansas,  and  to  the  end  that  the  for- 
feited reservations  should  not  in  tlie  final  adjustment  be  deducted  from  the 
quantity  ceded  to  the  United  States  by  articles  1  and  2  of  the  treaty  of 
1S17. 

The  removal  of  Indian  families  from  one  part  of  the  Cherokee  country, 
on  the  east  side  of  the  Mississippi,  to  another  part  of  the  same  eastern  ter- 
ritory, from  improvements  hi  the  territory  east  of  the  Mississippi  to  other 
lands  and  improvements  in  the  eastern  country,  before  the  census,  would 
not  disturb  nor  derange  the  contemplated  apportionment  accordiiig  to  the 
ratio  to  be  ascerlained  by  the  census  of  the  Cherokees  east  and  tlic  census  of 
the  Cherokees  west.  Those  who  registered  for  reservations,  and  who  re- 
mained in  the  country  east  until  after  the  final  apportionment  and  adjust- 
ment, would  not  have  increased  the  census  of  the  Cherokees  on  Arkan- 
sas— would  not  have  received  double  portions.  No  matter  how  they 
removed  from  one  place  to  another  place  in  the  Cherokee  country  after 
registration  for  reservations^  they  were  yet  eastern  Cherokees  and  not 
w^estern  Cherokees. 

It  was  a  removal  from  the  east  side  of  the  Mississippi  after  legistrntion 
for  reservations  to  the  west  on  Arkansas,  before  the  time  appointed  for  the 
census;  before  the  apportionment  and  adjustment  between  the  three  par- 
ties, the  United  States,  the  Cherokees  east,  and  the  Cherokees  west, 
"vvhich  tended  to  derange  the  ratio  of  apportionment  and  adjustment  of  the 
interests  of  the  three  several  parties.  That  was  the  manner  of  rem.oval, 
as  to  time,  place,  and  circumstance,  which  was  within  the  reason  of  the 
forfeiture.  Such  is  the  meaning  of  removing,  as  explained  by  the  several 
articles  of  the  treaty,  and  by  the  sense  and  meaning  of  the  treaty,  taking 
all  the  parts  together  as  one  whole. 

Such  removal  before  the  census,  or  before  the  final  adjustment  substi- 
tuted for  it,  wdiich  forfeited  the  right  to  the  reservation,  and  which  forfeit- 
ure thereby  became  known  before  the  final  adjustment,  carried  along  with 
it  these  consequences:  the  forfeited  reservation  would  not  be  deducted 
from  the  amount  ceded  mider  the  1st  and  2d  articles  of  this  treaty,  because 
the  United  States  acquired  the  right  to  such  reservations  so  forfeited. 
The  United  States  would  have  given  for  such  forfeited  reservations  so  re- 
verted to  the  United  States,  lands  on  ^Arkansas  in  exchange,  acre  for  acre, 
according  to  article  5,  and  must  have  paid  for  the  improvements  thereon, 
according  to  the  rules  prescribed  in  the  6th  and  Tth  articles. 

By  this  construction  all  the  parts  of  the  treaty  are  congruous,  the  one 
with  another;  and  the  construction  accords  with  axioms  4,  8,  and  10,  be- 
fore cited. 

By  this  understanding  of  the  treaty,  the  United  States  would  acquire 
neither  lands  nor  improvements,  by  forfeiture  of  reservations,  without  pay- 
ing an  equivalent  for  the  improvements  and  for  the  lands,  and  the  Indians 
so  removing  to  Arkansas  would  get  paid  the  value  of  their  improvements, 
in  money,  under  the  sixth  or  seventh  article,  according  to  the  facts,  and 
have  their  interests  in  the  public  domain  of  lands  on  the  Arkansas  and 
White  rivers  in  fee  simple.  By  this  construction  all  questions  of  forfeiture 
for  removal  would  have  been  matters  to  be  adjusted  speedily,  whilst  the 
transactions  were  fresh  in  mind,  and  as  belonging  to,  and  a  part  of,  the  ad- 
justment of  the  quantity  of  lands  to  be  ceded  to  the  United  States  in  addi- 
tion to  the  territory  ceded  by  the  first  and  second  articles,  and  of  the 


Mis.  No.  8.  43 

quantity  to  be  ceded  by  the  United  States  to  the  western  Cherokees,  in 
exchange,  acre  for  acre.  No  stale  questions  of  forfeiture  would  remain  to 
be  litigated  after  the  lapse  of  twenty  or  thirty  years,  Avhen  Avitnesses  were 
dispeiscd  or  dead,  and  when  the  memory  of  tlic  living,  as  to  past  transac- 
tions of  such  antiquity,  had  faded. 

By  the  contrary  construction  of  making  the  ])rohibition  unlimited  as  to 
time  and  place  of  the  removal,  the  United  Slates  would  acquire,  by  stale 
questions  of  forfeiture  raised  after  the  lands  ceded  to  tlie  United  States,  east 
of  the  Mississippi,  and  the  lands  cede(j  in  exchange  therefor  by  the  Uuited 
States  on  the  Arkansas  and  White  rivers,  iiad  been  finally  adjusted,  after 
tlie  iujprovements  abandoned  to  the  United  Slates  had  been  ascertained 
and  paid  for  under  the  sixth  and  seventh  articles  of  tbe  treaty  of  181T, 
aiid  the  second  article  of  the  treaty  of  1819;  lands  and  improvements  for 
which  they  have  never  given  any  thing  either  in  land  or  money;  lands 
and  improvements  which  were  deducted  out  of  the  lands  ceded  to  the 
United  States  by  the  treaties  of  1817  and  1819,  and  out  of  tlie  correlative 
cession  due  in  exchange  by  the  United  States  of  lands  on  Arkansas. 

By  such  constYUction  the  meaning  of  the  words  used  in  the  treaty,  "  re- 
move," "  removing,"  "  removed,"  "  to  remove,"  as  explained  in  various 
parts  of  the  treaty,  are  wrested  from  that  signification  to  a  ditFerent  one, 
contrary  to  the  reason  of  the  treaty,  and  contrary  to  the  rules  of  construc- 
tion, 2,  4;  8,  and  10,  before  cited. 

By  such  construction  the  Indian  families  who,  by  the  terms  of  the  trea- 
ties, became  citizens  of  the  United  States,  and  entitled  to  the  protection  of 
the  constitution  and  laws  of  the  United  States,  and  of  the  constitution  and 
laws  of  the  States  wherein  they  lived  from  the  lime  of  the  treaties  of  1817 
and  1819,  until  they  removed  by  invitation  of  the  treaties  of  1828  and 
1835-'36,  are  during  all  that  time  to  be  considered  as  fixtures  to  the  par- 
ticular tract  of  land  reserved;  as  villeins  regardant;  as  owners  of  the  free- 
hold estate  for  life  in  the  soil,  wilii  remainder  in  fee  to  their  children. 
They  are  denied  the  power  lo  occupy  their  estates  by  tenants,  as  other  citi- 
zens may  do;  they  are  denied  the  protection  of  the  rules  of  evidence  estab- 
lished by  the  laws  of  the  States  in  which  tlie  lands  are  situate,  to  guard 
against  frauds  and  perjuries  in  relation  to  sales  and  agreements  respecting 
lands;  are  denied  those  privileges  and  immunities  which  belong  to  the 
other  citizens  of  the  United  States  in  general,  as  to  the  mode  of  trial  of 
alleged  forfeitures;  they  are,  by  such  constructions  of  the  treaties  of  1817 
and  1819,  put  under  restrictions  and  inhibitions,  tcitally  inconsistent  with 
the  powers  and  declarations  of  tlie  federal  constitution.  A  construction 
which  conduces  to  such  absurd  consequences  should  be  rejected,  according 
to  the  rules  2  and  7. 

The  treaty  of  1819  recites  that  the  census  provided  for  by  the  treaty  of 
Sth  July,  1817,  had  not  been  taken;  and  in  place  of  the  census,  and  to  the 
end  that  a  final  adjustment  might  be  made  without  further  delay,  the  Cher- 
okees  offered  and  the  United  States  accepted  the  cessi(in  "  of  a  tract  of 
country  at  least  as  extensive  as  that  which  they  are  probably  entitled  to 
under  its  ])rovisions." 

By  article  1st  the  Cherokees  ceded  to  the  United  States  a  tract  of  country 
therein  described;  and  in  said  article  it  was  "  understood  and  agreed,  that 
the  lands  hereby  ceded  by  the  Cherokee  nation  are  in  full  satisfaction  of 
all  claims  which  the  United  States  have  on  them  on  account  of  the  cession 
of  a  part  of  their  nation  who  have  or  may  heicoflcr  emigrate  to  Arkansas; 


44  Mis.  No.  8. 

and  this  treaty  is  a  final  adjustment  of  that  of  8th  of  July,  eighteen  hun- 
dred and  seventeen." 

After  this,  it  seems  totally  inconsistent  with  good  faith,  and  the  stipula- 
tions of  this  article  of  the  treaty  of  181.9,  for  the  United  States  to  resort  to 
the  treaty  of  1817  to  work  forfeitures  for  removal  from  the  reservations 
under  that  treaty.  How  can  this  treaty  be  a  final  and  full  satisfaction  and 
adjustment  of  that  of  1817,  if  the  United  States  can  yet  claim  the  several 
and  respective  tracts  of  640  acres  each,  by  forfeitures  and  reversions  for 
non-compliance  with  the  terms  of  the  treaty  of  1817? 

If  an  individual,  on  his  private  account,  were  to  set  up  claims  in  a  court 
of  justice  against  his  own  solenni  deed  of  release  and  acknowledgment  of 
final  adjustment  and  satisfaction,  and  at  the  end  of  twenty  or  thirty  years 
after  the  date  of  the  deeds,  he  would  be  turned  out  of  court;  and  he,  and 
his  special  attorney  who  advised  such  suits,  would  be  looked  upon  as  shame- 
less knaves,  to  be  shunned  by  honest  men. 

Immediately  after  the  ratification  of  the  treaty  of  27th  February,  1819, 
all  the  reservations  then  registered  under  the  treaty  of  1817,  and  not  then 
forfeited  by  removal  to  Arkansas,  became  absolute  and  unconditional  es- 
tates, each  head  of  such  Indian  family  holding  an  estate  for  his  life,  the  child 
or  children  then  in  being  having  a  vested  remainder  in  fee,  for  himself  or 
herself  or  selves,  and  for  such  other  child  or  children  as  should  be  born  of 
the  marriage,  with  the  right  of  the  wife  to  be  endowed. 

This  was  a  reasonable  and  humane  provision,  out  of  the  common  do- 
main of  the  Cherokees,  for  such  Indian  families  as  desired  to  become  citi- 
zens of  the  United  States,  and  thereby  to  separate  from  the  Cherokee 
nations  east  and  west,  It  conceded  to  them  (heir  own  houses  and  im- 
provements, the  fruits  of  their  own  care  and  labor. 

Article  2d  of  the  treaty  of  1819  gives  reservations  of  640  acres  '^  to 
each  head  of  any  Indian  family  residing  within  the  ceded  territory^  those 
enrolled  for  Arkansas  excepted,  who  choose  to  become  citizens  of  the 
United  States  in  the  manner  stipulated  in  said  treaty,"  (of  1817,)  and  in 
that  same  article  the  United  States  agreed  to  pay  for  all  improvenjents 
abc^ndoned,  and  which  were  on  the  land  lying  within  the  country  ceded 
by  the  Cherokees,  which  add  real  value  to  the  land,  according  to  the  treaty 
of  8ih  July,  1817.' 

As  to  tbicse  improvements  within  the  ceded  territory  abandoned  by  re- 
moval to  Arkansas,  and  so  falling  to  the  United  States,  the  reference  to  the 
treaty  of  1817  shows  that  they  were  to  be  paid  for  at  the  time  of  removal 
from  them. 

The  7th  article  of  the  treaty  of  1819  gave  the  Cherokees  "  who  resided 
on  the  lands  ceded  by  this  treaty  time  to  cultivate  their  crop  next  summer, 
(1819;)  and  for  those  who  do  not  choose  to  take  reservations,  to  remove." 

By  this  treaty  the  reservations  were  to  be  taken  within  the  line  limited 
by  the  seventh  article.  As  there  was  no  census  to  be  taken,  the  treaty  of 
1819  having  adjusted  the  division  between  the  eastern  and  western  Chero- 
kees, at  the  rate  of  one  third  part  to  the  latter  and  two-thirds  to  the  former, 
and  as  the  United  States  accepted  an  additional  cession  in  full  of  all  claims, 
the  subject  of  removal  from  the  reservations  had  lost  its  former  importance 
under  the  treaty  of  1817. 

The  first,  second,  and  seventh  articles  of  the  treaty  of  1819,  taken  to- 
gether, show  that  the  cession  to  the  United  States  was  by  defined  bound- 
aries j  the  reservations  to  be  taken  under  this  treaty  were  confined  within 


Mis.  No.  8.  45 

the  ceded  territory;  the  removals  were  all  to  be  made  in  the  year  1819  by 
the  seventh  article.  All  those  who  desired  to  remain,  take  reservations^ 
and  become  citizens  of  the  United  States,  were  to  do  so  within  that  year. 
All  the  reservations  under  the  treaty  of  1819;  all  the  improvements  aban- 
doned and  to  be  paid  for  by  the  United  States,  as  well  those  belonging 
to  the  families  who  did  nor  register  for  reservations  as  those  who  did,  and 
thereafter  thought  fit  to  remove  to  Arkansas,  were  to  be  ascertained  and 
determined  by  the  payments  to  be  made  by  the  United  States  for  the  im- 
provements which  added  real  value  to  the  land  abandoned  within  the 
ceded  territory.  The  seventh  article  of  the  treaty  of  1819  contained  a 
limitation  as  to  reservations  and  removals,  which  in  the  course  of  the  year 
1819  settled  and  determined  all.  The  "manner"  alluded  to  in  the  sec- 
ond article  of  the  treaty  of  1819,  by  reference  to  the  treaty  of  1817,  gave 
a  life  estate  to  the  head  of  the  Indian  family,  the  remainder  in  fee  to  the 
children,  with  dower  to  the  widow. 

By  the  terms  of  the  treaty  of  1819,  and  final  adjustment  and  satisfac- 
tion therein  mentioned,  by  which  the  census  was  also  abolished,  all  the 
reservations,  as  well  those  taken  under  the  treaty  of  1817  as  those  taken: 
under  the  treaty  of  1819,  and  not  abandoned  to  the  use  of  the  United 
States  before  the  first  day  of  January,  1820,  so  as  to  receive  payment  of 
the  valuation  of  the  improvements  so  abandoned,  became  absolute  and  un- 
conditional estates  for  life  to  the  head  of  the  Indian  family,  with  remain- 
der in  fee  to  the  children,  and  dower  to  the  widow. 

The  whole  subject  of  reservations  and  removals,  and  forfeitures  of  reser- 
vations for  removal,  together  with  the  improvements  abandoned  to  the 
United  States,  for  which  payment  was  to  be  made  according  to  the  second 
articles  of  the  treaty  of  1819,  and  sixth  and  seventh  articles  of  the  treaty  of 
1817,  was  fixed  and  closed  by  the  close  of  the  year  1819.  On  the  1st  day 
of  January,  1820,  the  United  States  had  notice  of  all  reservations  and  im- 
provements abandoned  to  the  United  States  under  the  treaties  of  1817  and 
1819,  and  of  the  improvements  for  which  the  United  States  were  bound  to 
pay,  according  to  the  terms  prescribed  in  the  sixth  and  seventh  articles  of 
the  treaty  of  1817,  and  second  article  of  the  treaty  of  1819. 

By  the  treaties,  all  improvements  were  treated  as  private  property,  and 
all  that  were  abandoned  to  the  United  States  by  removal  to  Arkansas, 
whether  within  or  Avithout  the  ceded  territory,  as  well  on  reservations  taken 
and  thereafter  abandoned  to  the  United  States  by  removal,  as  improvements 
not  on  reservations,  were  to  be  paid  f"»r  by  the  United  States.  The  poor 
warriors,  whose  improvements  added  no  real  value  to  the  lands,  were  com- 
pensated in  specific  commodities.  For  the  improvements  adding  real  value 
to  the  land  not  cedcf ,  belonging  to  those  who  removed  to  Arkansas,  com- 
pensation in  money  was  due  by  the  sixth  article  of  the  treaty  of  1817;  and 
for  like  improvements  within  the  ceded  territory,  conipensation  was  due 
by  the  terras  of  the  seventh  article  of  the  treaty  of  1817;  and  the  treaty  of 
1819  adopted  the  same  rules  as  to  improvements  by  reference  to  the  treaty 
of  1817.  For  the  lands  ceded,  the  United  States  gave  lands  in  exchange  on 
xlrkansas;  and  f^r  all  improvements,  were  to  make  compensation  in  money, 
or  other  improvements.  To  get  lands  by  forfeiture,  and  the  improvements 
thereon,  for  which  nothing  has  been  given  by  the  United  States,  is  totally 
inconsistent  with  the  true  sense  and  meaning  of  the  treaty. 

By  the  registers  kept  by  the  agent  of  the  United  States,  and  now  depos- 
ited in  the  Department  of  War^  it  appears  that  one  hundred  and  fifty-six 


46  Mis  No.  8. 

families  took  reservations  under  the  treaty  of  1S17,  and  that  one  hundred 
and  fifty  five  families  took  reservations  under  the  treaty  of  1819 — in  all, 
three  hundred  famihes — making  one  hundred  and  ninety-nine  thousand 
and  forty  acres  deducted  out  of  the  quantity  ceded  to  the  United  States 
by  tlie  treaties  of  1817  and  1810,  for  which  the  United  States  did  not  give 
lands  in  exchange  on  Arkansas,  nor  pay  anything  in  money,  either  for 
those  199,040  acres,  or  f")r  the  improvements  thereon.  These  311  reserva- 
tions were,  in  truth  and  fact,  donations  by  the  Cherokee  nation  out  of  their 
public  domain,  which  the  United  States  did  guaranty  to  the  Cherokees 
forever  by  the  treaties  of  Holston  and  TeUico.  These  donations  to  the 
311  Indian  famihes,  so  separating  from  the  Cherokee  nation  and  becom- 
ing citizens  of  the  United  States,  were  assented  to  by  the  United  States. 
By  the  conjoined  and  mutual  acts  of  the  two  contracting  powers,  these  311 
Indian  families  respectively  acquired  a  complete  title  in  fee  simple  to  their 
respective  tracts  of  640  acres  of  land,  including  their  improvements,  with 
an  estate  for  life  to  the  head  of  the  family,  remainder  in  fee  to  the  children 
then  in  life  and  being,  in  trust  for  themselves  and  for  such  other  children 
as  should  be  born  of  their  parents,  with  dower  to  the  widow. 

If,  after  registering  for  a  reservation,  any  head  of  these  families,  before  the 
1st  day  of  January,  1820,  had  abandoned  his  reservation  and  removed  his 
family  to  Arkansas,  it  would  have  been  the  duty  of  the  agent  of  the  United 
States  to  have  noted  the  fact;  and  in  such  case  that  reservation  would  not 
have  been  deducted  from  the  quantity  ceded  to  the  United  States;  the  im- 
provements thereon  must  have  been  paid  for  by  the  United  States,  accord- 
ing to  the  sixth  or  seventh  article  of  the  treaty  of  1817,  as  the  case  re- 
quired; and  the  United  States  must  have  given  for  such  tract  of  laud  so 
reverting  to  the  United  States,  land  in  exchange,  acre  for  acre,  on  Arkan- 
sas and  White  rivers. 

After  the  treaty  of  February  7,  1819,  and  by  virtue  thereof,  those  three 
hundred  and  eleven  reservations  so  taken  and  not  abandoned  to  the  United 
States,  not  paid  for  by  the  United  States,  neither  by  lands  in  exchange 
acre  for  acre,  nor  in  money  for  the  improvements,  became  absolute,  uncon- 
ditional estates  in  fee  simple  to  the  respective  families,  divested  of  the  con- 
dition of  forfeiture  and  reversion  to  the  United  States  for  removal. 

It  appears  from  the  correspondence  between  Governor  McMinn  and  J.  C. 
Calhoun,  then  Secretary  of  War,  that  as  early  as  March,  1818,  the  question 
had  arisen  among  the  Indians  whether,  after  taking  reservations,  the  Indi- 
ans could  surrender  them  and  remove  to  Arkansas,  and  have  a  common 
right  with  their  brethren  there;  and  that  it  was  determined  by  Governor 
McMinn  and  the  Secretary  of  War,  that  a  Cherokee  might  take  a  reserva- 
tion and  thereafter  surrender  it,  and  would  thereby  have  a  common  right 
with  his  brethren  on  the  Arkansas,  but  if  he  took  a  reservation  and  retained 
it,  the  reservation  of  six  hundred  and  forty  acres  would  be  a  full  compen- 
sation for  all  his  claims.  (See  Mr.  Calhoun's  letter  of  March  16,  1818,  in 
answer  to  Governor  McMinn's  of  the  12th  and  13th  of  that  month — Ameri- 
can State  Papers,  Indian  affairs,  vol.  ii,  p.  479.)  In  the  same  book,  (page 
191,)  it  will  be  seen  that  after  the  treaty  of  I8i9,  surveyors  were  appointed 
by  the  Secretary  of  War,  not  only  to  survey  and  mark  the  boundaries  of  the 
several  tracts  of  country  ceded  to  the  United  States  by  the  treaties  of  1S17 
and  1819,  but  likewise  to  survey  the  reservations. 

This  question  whether  the  condition  annexed  to  reservations  was  of  per- 
petual residence,  or  only  temporary,  came  directly  before  the  supreme  court 


Mis.  No.  8.  47 

of  North  Carolina,  in  December,  1S34,.  in  the  case  of  Belk  vs.  Love.  (1 
Devereaux  and  Battle's  Reports,  65  to  75.)  The  question  arose  upon  a 
reservation  of  Yonah,  a  Cherokee,  specially  named  in  the  treaty  of  1819, 
and  taken  by  him  under  that  treaty,  and  by  him  sold  and  conveyed  to  the 
plaintiff  in  ejectment  by  deed  of  iS'ovember  1,  1S20.  Tlie  case  was  deci- 
ded by  the  supreme  court  after  argument  by  Mr.  Pearon  for  the  defendant 
in  the  ejectment,  and  by  Mr.  Badger  for  the  plaintiff  in  ejectment.  Gaston, 
judge,  delivered  the  opinion  of  the  court;  and  after  commenting  upon  the 
treaties  of  ISlTand  1819,  as  to  the  granting  of  reservations,  he  said:  ''The 
word  reservation  is  used  not  in  a  technical,  but  in  a  popular  sense,  mean- 
ing a  part  taken  out  of  the  whole  and  applied  differently  from  the  residue." 

"  It  has  also  been  urged  that  the  reservations  made  are  accompanied  by 
a  condition  of  perpetual  residence.  We  think  not.  A  declaration  of  intent 
to  reside  permanently  on  the  tract  is  made  a  condition  precedent  to  the  al- 
lotment of  such  a  tract;  bur  that  condition  once  performed,  and  the  allot- 
ment made,  the  estate  is  in  law  absolute." 

An  inquest  of  ofhce  was  indispensably  necessary  to  try  and  find  the  fact 
whereby  the  lands  were  to  accrue  to  the  United  States,  or  to  the  State,  (for 
whose  use  the  Indian  title  was  extinguished,)  by  forfeiture  for  removal. 
''  These  inquests  of  office  were  devised  by  law  as  an  authentic  means  to 
give  tiie  King  his  right  by  solemn  matter  of  record;  without  which  he,  in 
general,  can  neither  take  nor  part  from  anything.  For  it  is  part  of  the  lil)er- 
ties  of  England,  and  greatly  for  the  safety  of  the  subject,  that  the  King 
may  not  enter  upon  or  seize  any  man's  possessions  upon  bare  surmises, 
without  the  intervention  of  a  jury."  'I'hese  inquests  of  office  and  findings 
are  not  conclusive,  but  may  be  avoided  by  the  subject,  by  his  petition  of  right, 
which  discloses  new  facts,  or  by  his  mo/islrans  de  droit,  which  relies  upon 
the  facts  as  found,  or  by  traverse,  or  denial  of  the  matter  of  iaet  itself,  and 
putting  it  in  a  course  of  trial  by  the  law  process  of  the  Court  of  Chancery. 
(Black.  Comm.,  book  iii,  chap.  17,  pp.  258,  259,  2(30;  book  iv,  chap.  23, 
p.  301;  chap.  33,  p.  424.  Magna  Charta,  chap.  29,  Second  Institute,  p.  45.) 

It  is  within  the  power  of  the  government  of  the  United  States,  by  treaty, 
to  make  citizens  of  the  United  States.  The  inhabitants  of  Louisiana  and 
of  Florida  were  made  citizens  of  the  United  States  by  treaties.  Under  the 
treatiesof  1817  and  1819,  those  Cherokees  who  declared  their  wish  to  become 
citizens  of  the  United  States  by  filing  their  names  in  the  office  of  the  Chero- 
kee agent  of  the  United  States,  (according  to  those  treaties,)  and  who  took 
reservations,  became  citizens  of  the  United  States,  and  entitled  to  the  pro- 
tection, rights,  privileges  and  immunities  secured  by  the  constitution  of 
the  United  States,  and  particularly  to  the  protection  of  the  fifth  article  of  the 
amendments  thereto,  which  declares  "  that  no  person  shall  be  deprived  of 
life,  liberty  or  property  without  due  process  of  law;  nor  shall  private  pro- 
perty be  taken  for  public  use  without  just  compensation." 

\^^  tire  registration  for  reservations,  the  heads  ol  Indian  families  respect- 
ively had  vested  rights  in  their  reservations;  each  head  of  a  family  to  an  es- 
tate tor  his  own  life,  with  remainder  in  fee  immediately  vested  in  the  child 
or  children,  in  life,  and  being  at  the  time  v/hen  the  particular  estate  for  life 
vested  in  the  parent. 

Whatever  the  powers  of  governments  may  be,  by  legislative  acts,  or  by 
treaties  having  the  force  of  a  supreme  law,  to  dispose  of  private  rights  to 
subserve  the  ends  of  public  policy,  their  acts  ought  never  to  be  so  con- 
strued as  to  subvert  the  rights  of  property,  unless  the  intention  so  to  do  be 


48  Mis.  No.  8. 

expressed  in  such  terms  as  to  admit  of  no  doubt,  and  to  show  a  clear  de- 
sign to  effect  the  object.  No  silent,  implied,  and  constructive  forfeitures, 
or  repeals,  ought  ever  to  be  so  understood  as  to  divest  a  vested  right. 
Such  is  the  general  principle  expressed  and  adjudged  by  the  Supreme 
Court  of  the  tJnited  States  in  the  case  of  Rutherford  vs.  Greene's  heirs. 
(2  Wheat.,  203.) 

The  attempt  now  is,  by  implications  and  constructions,  and  without  due 
process  of  law,  to  work  forfeitures  for  removals,  con'rary  to  the  principle  so 
stated  by  the  Supreme  Court  of  the  United  States,  and  to  the  general 
rules  2,  4,  6,  8,  and  10,  before  cited,  and  to  the  constitution. 

Some  families  were  driven  off  by  force,  or  fear  of  harm,  by  the  purcha- 
sers under  State  sales,  against  which  intruders  the  United  States  failed  to 
protect,  as  they  undertook  to  do  by  the  5th  article  of  the  treaty  of  1819; 
some  were  forced  off  by  purchasers  under  sates  by  the  agents  of  the 
United  States;  some  sold  to  the  State  of  North  Carolina;  some  sold  to  the 
United  States  under  the  law  of  Congress  appropriating  1^50,000,  to  be  ap- 
plied in  purchasing  reservations  in  the  State  of  Georgia;  and  some  who 
were  forcibly  dispossessed  by  intruders  purchasing  under  State  laws  re- 
covered their  possessions  by  legal  process;  others,  in  attempting  to  recover 
their  possessions,  were  unsuccessful  for  want  of  white  men  as  witnesses, 
the  law  of  the  State  not  allowing  Indians  to  testify  against  white  men;  and 
some  removed  to  Arkansas  under  the  inducement  of  payment  for  their 
reservations,  held  out  by  the  United  States  in  the  treaty  of  1828;  and  some, 
to  save  themselves  from  litigation,  purchased  at  the  sales  made  by  the 
States. 

These  reservations  were  considered  valid  titles  by  the  United  States  and 
by  the  several  States,  when  the  Indians  were  solicited  to  sell  or  relinquish, 
and  as  such  they  were  bought  by  the  United  States  and  bj'"  the  States,  so 
far  as  the  Indians  could  be  induced  to  sell;  they  were  considered  valid 
titles  in  the  treaty  of  New  Echota,  when  by  the  1st  supplemental  article 
they  were  all  "relinquished"  for  a  compensation  promised  by  the  3d 
supplemental  article,  to  be  adjudged  by  the  commissioners  to  be  appomted 
under  the  17th  article. 

The  State  laws,  and  the  documents  in  the  War  Department,  and  the 
public  documents  printed  by  order  of  the  Congress,  attest  the  great  efforts, 
by  State  laws.  State  sales,  and  individual  force  and  intimidations,  to  drive 
the  Indians  from  their  possessions  and  reservations.  But  these  hav'e  been 
forgotten  when,  under  the  treaty  of  New  Echota,  the  heads  of  the  Indian 
families,  and  their  children,  have  appeared  before  the  commissioners  to 
claim  the  compensation  promised  for  the  general  relinquishment  and  abro- 
gation insisted  on  by  the  President  of  the  United  States,  and  inserted  in 
the  1st  supplemental  article  of  the  treaty  of  New  Echota.  The  claimants 
have  been  obstructed  by  instructions  from  the  War  Department,  interpre- 
tations and  opinions  of  Attorneys  General,  made  up  for  the  executive  offi- 
cers of  the  United  States,  without  hearing  the  other  party,  constituting  a 
black  catalogue  of  premeditated  wrongs  to  the  Clierokees. 

Before  the  treaty,  and  in  the  treaty,  these  reservations  were  considered 
as  valid  subsisting  rights  and  interests,  to  be  relinquished  and  compen- 
sated in  money.  After  the  treaty,  when  all  these  reservations  are  relin- 
quished and  declared  void  in  consideration  of  the  equivalent  promised  in 
money,  the  claims  by  forfeitures  for  removal  are  set  up  under  the  treaty 
of  1817,  in  bold  defiance  of  the  "full  satisfaction  of  all  claims,"  and 


Mis.  No.  8.  .  49 

'^^  final  "adjustment"  of  the  treaty  of  1817,  which  is  expressed  in  the  1st 
article  of  the  treaty  of  1819. 

Daring  all  the  time  from  the  treaty  of  1819  to  the  treaty  of  1835,  and 
thenceforward  until  the  claims  for  money  in  lieu  of  reservations  were  pre- 
sented for  adjudication,  these  claims  of  forfeitures  by  removal  lay  dor- 
mant, unasserted  by  the  States,  or  by  the  United  States.  No  inquest  of 
office,  no  proceeding  by  office  found,  either  State  or  federal,  has  been  held 
to  inquire  into  the  fact  which  was  to  divest  the  rightr  and  title  of  the  In- 
dian, and  to  vest  it  in  the  government  by  the  forfeiture. 

A  release  of  the  right  was  sought  by  the  United  States,  and  accepted  by 
the  1st  article  of  the  supplemental  treaty;  a  compensation  in  money  for  the 
right  so  "^  relinquished"  was  promised  in  the  3d  supplemental  article;  and 
now,  after  ratification,  against  the  acknowledgment  of  right  contained  in 
the  release  sought  and  accepted,  against  the  compensation  engaged  for  the 
right  "relinquished,"  for  the  release  accepted,  a  title  by  forfeiture  antece- 
dent to  the  treaty  is  set  up  ! 

Wliat  a  difference  of  behaviour  between  those  agents  of  the  United 
States  v/ho  sought,  signed,  and  concluded  the  treaty  of  New  Echota,  and 
those  who  are  intrusted  with  the  duty  of  fulfilling  the  treaty  after  its  ratifi- 
cation! 

All  the  claims  to  reservations  had  been  filed  with  the  agent  of  the  United 
States,  under  the  treaties  of  1817  and  1819,  registered  by  the  agent  as  far 
back  as  the  year  1819,  and  this  register  had  been  filed  in  the  Department 
of  War  soon  after.  The  claims  to  reservations  were  matters  of  public 
record,  in  the  keeping  of  the  Department  of  ¥/ar,  before  the  treaty  of  New 
Echota.  A  release  of  those  claims  was  asked  and  accepted  by  the  United 
States  in  the  treaty  of  New  Echota.  Any  claim  of  the  United  States  to 
the  lands  by  forfeiture,  founded  on  the  fact  of  removal  from  the  reserva- 
tions, had  accrued  before  the  treaty  of  Nev/  Echota;  had  preceded  the  re- 
lease asked  and  accepted  by  the  United  States;  had  preceded  the  promise 
of  compensation  for  the  release.  The  United  States  in  good  faith  cannot 
now  set  up  title  by  forfeiture  in  bar  of  the  compensation  for  the  release  of 
the  claims  to  the  reservations:  the  treaty  is  an  answer  to  any  such  claims 
of  pre-existing  forfeitures.  The  agents  of  the  United  States  who  have  set 
up  such  stale  claims  of  forfeiture  for  removal  in  derogation  of  the  treaty  of 
New  Echota,  have  sullied  the  honor  of  the  United  States,  the  faith  of 
the  treaty,  and  done  palpable  wrong  to  the  claimants  of  compensation  for 
their  reserv^ations  so  registered  and  so  relinquished  by  the  treaty  for  prom- 
ise of  payment. 

The  treaties  are  not  written  in  the  language  of  the  Cherokees,  but 
wholly  in  the  language  of  the  people  of  the  United  States.  The  Indians 
who  made  the  treaties  of  1817  and  1819  acted  by  interpreters,  two  in  num- 
ber, one  attesting  by  his  mark.  Of  the  warriors,  chiefs,  and  headmen  of  the 
Indians,  thirty-seven  could  not  write,  but  signed  by  their  mark:  eight  only 
could  write  their  names.  These  illiterate  Indians  signed  the  treaty  as  ex- 
plained by  interpreters,  and  as  written  by  the  agents  of  the  United  States. 
Under  such  circumstances,  the  United  States,  the  guardians  of  these  In- 
dians, cannot  take  advantage  of  dubious  expressions  in  one  particular  part, 
and  therefrom  o-ctract  a  meaning  from  a  detached  part  different  from  the 
tenor  of  the  other  parts,  wherelrom  to  raise  tbrfeitures  of  the  lands  and  im- 
provements, which  the  United  States  did  not  buy  nor  pay  for,  but  were 
exceptions  out  of  the  lands  ceded  to  the  United  States.  To  claim  for- 
■-,-..4      -  ..•       .■  ,         . 


50  Mis.  No.  8.       . 

feitures  thereof  by  far-fetched  impKcations,  ambiguous  expressionsy  by 
sticking  in  the  back,  and  by  the  abstruse  doctrines  of  contingent  remain- 
ders, against  the  reason  and  spirit  of  the  treaty,  is  forbidden  by  the  2d, 
4th,  5th,  6th,  Sth,  and  9th  general  axioms  before  cited. 

The  extremity  to  which  the  claims  to  forfeitures  have  been  pushed  by 
the  agents  of  the  United  States,  and  the  tenure  by  which  they  are  claimed, 
deserve  some  notice. 

By  the  treaty  of -Holston  of  1791,  (1  vol.  Laws  U.  S.,  327,)  "  the  Uni- 
ted States  solemnly  guaranty  to  the  Cherokee  nation  all  their  lands  not 
hereby  ceded."  And  by  the  treaty  of  Tellico,  in  the  year  1798,  (vol.  1, 
p.  333,)  "in  consideration  of  the  relinquishment  and  cession  hereby  made, 
the  United  States"  engaged  to  deliver  certain  goods,  and  to  pay  an  annu- 
ity to  the  Cherokees,  "and  will  continue' the  guarantee  of  the  remainder  of 
their  country  forever,  as  made  and  contained  in  former  treaties." 

By  these  treaties  the  Cherokees  are  acknowledged  as  a  nation  capable  of 
the  relations  of  peace  and  war^  having  their  own  government  and  laws^ 
their  own  country  defined  specially  by  the  treaties,  their  own  pubhc  do- 
main, the  right  to  hold,  use,  and  occupy  their  lands  forever,  subject  to  the 
ultimate  right  of  the  United  States  to  buy  and  obtain  a  cession  of  their 
lands,  to  the  exclusion  of  all  foreign  nations.  States,  or  people.  Such  is  the 
true  state  of  the  relations  between  the  United  States  and  the  Cherokees; 
so  it  has  been  proclaimed  to  foreign  nations  by  the  United  States:  so  is 
the  decision  of  the  Supreme  Court  of  the  United  States. — (5  Peters,  pp. 
17,  55;  the  Cherokee  Nation  vs.  The  State  of  Georgia.)  The  Chero- 
kees "  are  acknowledged  to  have  an  unquestionable  right  to  the  lands 
they  occupy  until  that  right  shall  be  extinguished  by  a  voluntary  cession 
to  our  government." 

Such  being  the  present  right  of  the  Cherokees,  and  the  remote  ultimate 
right  of  the  United  States,  in  the  lands  which  were  the  subjects  of  the 
treaty  of  1817,  the  eighth  article  must  be  understood  as  the  words  of  both 
parties  to  the  treaty;  as  containing  an  agreement  by  the  Cherokees  to  give 
the  reservations  in  "the  lands  that  are  now,  or  may  hereafter  be,  surren- 
dered to  the  United  States,"  and  as  containing  an  assent  on  the  part  of 
the  United  States  so  as  to  give  a  reservation  of  640  acres  to  each  and  every 
head  of  an  Indian  family  Avho  may  wish  to  become  citizens  of  the  United 
States. 

The  United  States  did  not  buy  nor  pay  for  those  reservations;  they  were 
deducted  out  of  the  quantity  ceded,  out  of  the  quantity  paid  for  by  the 
United  States.  Until  the  United  States  acquired  the  Indian  title,  they  could 
not  give  nor  grant  the  lands  to  citizens  of  the  United  States;  neither  could  the 
Cherokees,  without  the  assent  of  the  United  States,  give  or  grant  the  lands 
in  fee  simple  to  citizens  of  the  United  States.  Independently  of  the  general 
policy  of  the  United  States,  the  act  of  30th  March,  1802,  (chap.  273,  sec. 
12,  vol.  3,  p.  463,  of  Bioren's  edition,)  positively  forbade  it  unless  by  treaty 
or  convention.  The  Sth  article  required  the  assent  of  the  Indian  nation, 
and  of  the  United  States,  to  perfect  the  titles  therein  granted.  The  Cher- 
okee nation  did  agree  to  give,  and  the  United  States  did  agree  to  give,  the 
reservations  upon  the  terms  expressed  in  that  article.  They  are  the  gifts 
mutually  agreed  and  consented  to  by  the  two  contracting  parties.  To 
found  a  construction,  or  a  deduction,  upon  the  words  "  the  United  States 
do  agree  to  give,"  solely  and  apart  from  all  the  other  words  of  that  article 
and  of  all  the  other  articles,  and  without  regard  to  the  respective  rights  of 
the  two  contracting  parties  in  the  subject  matter^  would  violate  the  Sth  rule 


Mis.  No.  8.  '         ••;  51 

of  construction  before  cited,  and  also  this  other  rule,  ^^  we  ought  always 
to  give  to  expressions  the  sense  most  suitable  to  the  subject,  or  to  the 
matter  to  which  they  relate." — (Vattel,  p.  232,  sec.  280.) 

The  subject  of  the  eighth  article  was  a  country  owned  by  the  Chero- 
kees  by  a  right  of  occupancy  forever — the  United  States  having  the  sole 
right  to  acquire  the  Indian  title.  Of  that  country  the  United  States  were 
to  acquire  a  part  by  the  treaty  of  1817,  having  the  l^nown  desire  to  acquire 
the  surrender  of  the  whole  at  some  future  period  in  pursuance  of  an  ex- 
press obligation  to  the  State  of  Georgia,  and  implied  obligations  to  the 
other  States  within  whose  borders  the  Cherokee  countrj''  lay.  The  inten- 
tion to  obtain  a  further  surrender  appears  in  the  eighth  article.  That  the 
United  Slates  and  the  Cherokees  sliould  unite  in  granting  estates  in  fee 
simple  to  persons  desiring  to  separate  from  the  Indian  nation  and  become 
citizens  of  the  United  States,  was  indispensably  necessary  to  a  perfect  title 
in  fee  to  such  private  persons.  That  the  United  States  should  agree  that 
the  reservations  of  640  acres  to  each  Indian  family  who  were  to  become 
citizens  of  the  United  States  should  be  taken  in  the  Cherokee  country, 
within  the  bounds  either  then  surrendered,  or  thereafter  to  be  surrendered 
to  the  United  States,  was  easy,  and  in  furtherance  of  their  policy;  seeing 
that  all  such  reservations,  when  deducted  from  the  quantity  within  the 
boundaries  defined  in  articles  1  and  2,  did  not  decrease  the  quantity  to  be 
surrendered  by  other  boundaries  and  concessions,  but,  in  so  far  as  the  res- 
ervations were  taken  outside  of  the  boundaries  defined  in  articles  1  and  2, 
if  deducted  from  the  quantity  within  those  defined  limits,  would  increase 
the  quantity  to  be  surrendered  to  the  United  States  within  other  boundaries 
thereafter  to  be  assigned,  to  make  up  the  just  proportion  for  the  Cherokees 
on  the  Arkansas,  and  those  removing  there,  and  who  should  declare  their 
intention  to  remove  thither,  to  be  determined  by  the  census  to  be  taken. 

That  the  Cherokees  east  should  have  hesitated  to  assent  to  that  propo- 
sition would  not  have  been  surprising,  seeing  that  it  operated  to  decrease 
the  quantity  which  would  remain  to  them  after  the  just  proportion  to  the 
Cherokees  then  on  Arkansas,  and  to  remove  there,  was  assigned  and  sur- 
rendered to  the  United  States,  to  be  paid  for  by  lands  in  exchange,  acre  for 
acre,  to  be  ceded  by  the  United  States,  on  Arkansas  and  Wliite  rivers,  to 
the  western  Cherokees.  But  the  whole  nation  of  Cherokees  did  agree  to 
the  terms,  as  making  only  a  reasonable  provision  for  those  of  their  nation 
who  desired  to  become  citizens  of  the  United  States,  subject  to  their  laws. 
It  was  very  far  short  of  their  proportion  of  the  lands  belonging  to  the  Cher- 
okees. Taking  the  average  number  of  persons  in  each  family  at  three, 
each  family  would  have  been  entitled  to  not  less  than  2,600  acres;  and 
taking  the  average  of  four  persons  to  a  family,  each  Indian  family  would 
have  been  entided  to  not  less  than  3,500  acres,  according  to  tlie  quantity 
of  lands  owned,  compared  with  the  best  estimate  of  the  whole  number  of 
Cherokees  east  and  west.  By  taking  reservations  and  becoming  citizens 
of  the  United  States,  those  famihes  gave  up  their  portions  of  the  annuities, 
and  of  the  residue  of  the  lands.  Words  cannot  be  more  explicit  to  de- 
clare the  right  of  the  Cherokees  residing  east  of  the  Mississippi  to  take  res- 
ervations within  or  without  the  boundaries  then  defined  in  the  first  and 
second  articles  of  the  treaty  of  181T;  and  the  greater  the  number  of  the 
reservations  taken  outside  of  the  territory  ceded,  the  greater  the  quantity 
to  be  ceded  (in  addition  to  the  tracts  defined  by  articles  one  and  two)  to 
supply  the  deductions  for  reservations,  and  make  up  the  portion  for  the 
western  Cherokees,  according  to  articles  3,  4,  and  5.     The  policy  of  the 


"52      ;■■  •/     ■  '  :    .      Mis.  No.  8.'        -^'  ■  ■  ■  ■ 

United  States  was  best  subserved  by  permitting  reservations  to  be  taken 
outside  of  the  boundaries  of  the  two  tracts  of  country  specially  ceded  by 
articles  1  and  2,  inasmuch  as  the  deduction  of  such  reservations  from 
those  specific  boundaries  did  but  lay  the  foundation  for  the  additional 
quantity  to  be  ceded  as  contemplated  in  articles  three,  four,  and  five;  and 
all  the  reservations  outside  of  the  specified  boundaries  became  parts  of 
the  United  States,  the  inhabitants  thereof  being  converted  into  citizens  of 
the  United  States,  subject  to  the  laws  and  jurisdiction  of  the  States  within 
whose  limits  those  reservations  were  respectively  situated.  Moreover,  the 
dotting  of  the  Cherokee  country  with  reservations  and  inhabitants,  de- 
tached from  the  Indian  nation  and  Indian  jurisdiction,  and  subjected  to 
the  jurisdiction  of  the  United  States,  necessarily  incommoded  the  Indian 
nation,  embarrassed  the  execution  of  the  Indian  laws  and  government,  and 
thereby  excited  an  inclination  in  the  Cherokees  to  remove  to  Arkansas, 
where  they  could  enjoy  in  peace  and  quiet  their  own  government,  laws, 
and  usages.  The  policy  of  the  United  States  in  agreeing,  and  in  indu- 
cing the  Indians  to  agree,  that  the  reservations  might  be  taken  outside  of 
the  boundaries  of  the  two  tracts  ceded  by  articles  one  and  two,  and  that 
the  families  thereon  should  thereby  become  citizens  of  the  United  States, 
was  a  masterpiece  in  the  negotiation,  which  had  a  powerful  effect  upon  the 
Cherokee  nation,  inducing  their  council  very  soon  after  to  offer  the  cession 
to  the  United  States  of  a  much  larger  additional  territory  than  that  which 
they  would  have  acquired  by  the  terms  of  the  treaty  of  1817,  and  so  to 
adjust  the  matter  by  the  treaty  of  1819  as  to  confine  reservations  there- 
after within  the  limits  of  the  ceded  territory. 

The  policy  of  the  United  States  was  to  encourage  emigration  of  the 
■  Cherokees  to  Arkansas,  as  the  most  effectual  means  to  get  clear  of  the  con- 
flicting obligations  of  the  United  States  to  Georgia,  North  Carolina,  Ten- 
nessee, and  Alabama,  on  the  one  hand,  and  to  the  Cherokees  on  the  other. 
This  was  the  great  desire.  A  minor  desire  was  to  induce  them  to  take 
reservations,  and  become  citizens  of  the  United  States,  as  auxiliary  to  their 
removal  to  Arkansas.  It  was  far  from  the  desire  or  policy  of  the  United 
States  to  throw  any  obstacles  in  the  way  of  any  of  those  who  should  be 
inclined  to  remove  from  the  east  side  of  the  Mississippi  to  Arkansas.  On 
the  contrary,  every  encouragement  to  remove  to  Arkansas,  every  persua- 
sion, was  used  to  effect  that  object.  Such  policy  and  such  persuasions  are 
to  be  seen  in  the  correspondence  between  the  Secretary  of  War  with  Gov- 
ernor McMinn,  of  December  2,  1817;  March  16,  1818;  July  29,  1818; 
(two  letters,)  December  29,  1818,  and  various  others,  published  in  Ameri- 
can State  Papers — Indian  Affairs — vol.  2.,  p.  478  to  490.  The  policy  of 
the  eastern  Cherokees  was  to  prevent  the  removals  to  Arkansas  and  to  dis- 
courage the  taking  of  reservations,  as  will  be  seen  in  parts  of  the  corres- 
pondence before  referred  to. 

To  forfeit  reservations  for  removal  to  Arkansas  after  the  final  adjustment 
by  the  treaty  of  1819,  would  have  been  a  great  discouragement  to  re- 
movals, and  in  direct  hostility  to  the  avowed  policy  of  the  United  States 
which  has  been  pursued  not  only  towards  the  Cherokees,  but  towards  all 
the  Indian  tribes  and  nations.  It  has  been  the  anxious  desire,  the  un- 
ceasing effort  of  the  United  States,  to  remove  all  the  Indians  from  within 
the  borders  of  the  States,  to  the  west  side  of  the  Mississippi  river. 

So  far  from  its  being  allowable  to  contest  the  validity  of  reservations 
under  the  treaty  of  1817;  on  the  ground  that  they  were  in  the  then  un- 


Mis.  No.  8.  53 

ceded  territory,  the  13th  article  of  the  treaty  of  New  Echota  expressly 
confirmed  them,  "  although,  by  the  treaty  of  1819,  such  reservations  were 
included  in  the  unceded  lands  belonging  to  the  Cherokee  nation." 

Here  it  is  convenient  to  repel  the  rigidity  which  has  been  practised  by 
the  coramissioners  towards  reservations,  in  seeking  out  forfeitures  and 
other  obdurate  objections,  by  invoking  attention  to  the  clauses  of  the  13tli 
article,  by  which  it  is  declared  that  the  claimants  shall  be  entitled  to  the 
reservations,  "  where  the  terms  on  which  the  reservations  were  made,  in 
the  opinion  of  the  commissioners,  have  been  compHed  with  as  far  as  prac- 
ticable." Mr.  J.  F.  Schermerhorn,  the  negotiator  of  the  treaty  of  1835- 
'36,  states  in  his  diary  of  the  23d  and  28th  December,  1835,  that  "  in 
order  to  remove  complaints  as  to  the  non-execution  by  the  United  States  of 
the  treaties  of  181 T  and  1819,  respecting  reservations,  and  satisfy  the  In-, 
dians  of  the  disposition  of  the  XTnited  States  to  do  them  ample  justice,  the' 
article  13th  of  the  treaty  was  inserted  on  this  subject,  which  provides  for 
carrying  into  effect  the  provisions  of  former  treaties  as  far  as  practicable, 
and  which  the  honor  and  good  faith  of  the  nation  render  indispensable." — 
(See  Senate  doc.  No.  120,  25th  Cong.,  2d  sess.,  lS37-'38,  vol.  2,  p.  516.) 

\\^ell  might  the  Cherokecs  who  Avitnessed,  with  amazement,  the  paltry 
shifts  and  far-fetched  objections  to  deny  compensations  for  reservations, 
raised  by  the  commissioners,  in  violation  of  the  spirit  of  this  thirteenth, 
article,  exclaim:  "  Our  Great  Father  who  promised  us  justice,  who  prom- 
ised to  protect  us,  is  gone!  This  is  another  father  who  disowns  his  chil- 
dren.    He  does  not  protect  us  against  his  cruel  servants." 

The  commissioners  lastly  appointed  have  reported  to  the  President  that 
they  have  rejected  twelve  hundred  and  one  claims  of  all  descriptions,  and 
had  allowed,  in  whole  or  in  part,  twenty  eight,  amounting  to  thirty-one 
thousand  five  hundred  and  seventy-eight  dollars  and  fifty  cents. 

It  must  be  confessed  that  these  last  commissioners  have  been  veiy  obe- 
dient to  the  instructions  and  advisements  of  the  War  Department;  and 
have  manifested  a  pre-disposition,  a  pre-determination,  for  destruction.  Tliey 
did  not  adventure  to  issue  certificates  until  the  decisions  were  submitted  to 
the  War  Department;  if  there  disapproved,  the  decisions  were  reversed  and 
annulled.  Even  their  certificates  were  sent  to  the  War  Department,  in- 
stead of  being  delivered  to  the  claimants  respectively.  By  their  fourth 
rule  it  was  declared:  "  The  commissioners  will  not  permit  any  claimant,  or 
person  concerned  for  thern,  to  converse  with  the  commissioners,  or  their 
sccrelanj,  privately,  upon  the  subject  of  any  claim,  or  matter  relating 
thereto;"  whilst  they,  the  commissioners,  were  instructed  "  that  you  fully 
and  freely  advise  with  this  department  on  the  several  matters  committed  to 
you;"  and  did  again  and  again  hold  such  advisements.  Thus  a  secret 
court  of  star-chamber  was  erected,  whose  proceedings  were  as  penal  and 
as  destructive  of  the  rights  ©f  the  Cherokee  claimants,  as  the  old  court 
of  star-chamber  was  to  the  rights  of  British  subjects;  which,  for  the  just 
odium  into  which  it  had  fallen,  was  abolished  by  statute  of  16  Charles  I, 
chap.  10,  to  the  general  joy  of  tiie  whole  nation.  The  enormous  oppres- 
sions of  tliat  old  court  of  star-chamber  are  recorded  in  the  histories  of  the 
times.  The  task  is  ours  to  give  some  examples  of  the  enormities  practised 
by  this  modern  court  of  star-chamber  which  has  recently  expired. 

That  men  are  fallible;  that  all  judicial  tribunals,  even  those  which  are  of 
appellate  jurisdiction  and  of  the  last  resort,  are  subject  to  the  errors  insepa- 
rable from  the  imperfections  and  fallibilities  of  human  nature,  is  admitted. 


M  '      '        Mis.  No.  8. 

As  a  general  principle,  it  is  convenient  and  proper  to  presume,  when  a 
tribunal  of  competent  and  final  jurisdiction  has  examined  and. adjudicated, 
that  the  decision  is  according  to  right  and  justice.  But  this,  like  all  other 
general  rules,  is  not  without  its  exception. 

If  the  error  be  evident,  palpable,  "  et  in  re  minime  dubia,"  (in  a  matter 
not  doubtful,)  it  then  assumes  another  form;  it  excites  presumption  that  it 
was  not  mere  error,  but  premeditated  wrong;  and  the  foreigner,  as  well  as 
the  native,  suffering  by  the  wrong,  may  as  reasonably  complain  as  for 
a  wrong  committed  in  any  other  w^ay.  In  such  case,  if  no  redress  be 
otherwise  obtained,  a  foreign  prince  may  listen  to  a  complaint  from  his 
subjects  injured  by  the  adjudication;  may  inquire  into  its  principles,  prove 
their  criminality,  and,  according  to  the  magnitude  of  the  Avrong,  take  his 
measures  of  redress,  by  reprisal,  (fcc,  &c. 

For  these  principles  the  authority  of  Mr.  Jefferson  is  sufficient;  no  other 
need  be  cited.  (See  Mr.  Jefferson's  letter  as  Secretary  of  State,  of  6th 
April,  1792,  to  Mr.  Hammond,  minister  plenipotentiary  of  Great  Britain; 
American  State  Papers,  Foreign  Relations,  vol.  1,  p.  212.)  As  clear  as 
was  Mr.  Jefferson's  vindication  of  the  decisions  of  the  State  courts  against 
the  imputations  of  the  British  minister,  so  clear  will  be  the  condemnation 
of  the  decisions  of  the  commissioners  under  the  treaty  of  New  Echota,  of 
which  we  complain. 

The  moral  obligation  of  the  government  of  the  United  States  to  redress 
without  delay  these  premeditated  wrongs  committed  by  the  commissioners, 
without  deferring  the  matter  until  the  Cherokee  nation  itself  shall  make 
formal  complaint  to  this  government,  is  impressed  by  the  following  consid- 
erations: 

1.  The  decisions  complained  of  were  caused  by  the  instructions, 
promptings,  and  advisements  of  an  officer  of  the  Department  of  War,  to 
the  court  of  commissioners  established  by  the  treaty  of  New  Echota. 
These  interferences  with  that  tribunal  w^ere  in  violation  of  the  law  of  na- 
tions, and  of  the  faith  of  the  treaty. 

2.  The  government  of  the  United  States  is  responsible  for  such  improper 
conduct  of  its  own  officers  towards  the  court  of  commissioners  established 
by  the  treaty,  and  appointed  by  the  United  States. 

3.  Solemn  treaties  between  the  United  States  and  the  Cherokees,  show 
that  the  Cherokees  are  under  the  protection  of  the  United  States;  "  their 
relation  to  the  United  States  resembles  that  of  a  ward  to  his  guardian." 
Let  not  the  United  States  exhibit  to  the  world  such  a  guardianship  of  the 
Cherokees  as  that  described  by  Sir  Edward  Coke,  "Q,uasi  agnum  lupo 
committere  ad  devorandum,"  (as  if  to  commit  a  lamb  to  a  wolf,  to  be  de- 
voured.) To  vindicate  the  honor  and  good  faith  of  the  United  States, 
these  instructions  should  be  disavowed  by  the  government;  the  officer  who 
has  so  offended  should  be  punished;  a  commission  should  be  issued  to 
persons  of  stern  integrity,  able  jurists  of  high  reputation  and  of  undoubted 
qualifications;  to  hold  their  commission,  not  during  the  pleasure  of  the 
President,  but  during  good  behaviour,  so  long  as  the  business  shall  require, 
to  examine  and  adjudicate  all  claims  against  the  United  States  arising 
under  the  treaty  of  New  Echota. 

Of  the  cases  adjudged  by  the  commissioners,  the  following  examples 
(out  of  many  others)  will  suffice  to  show  their  settled  purpose  to  conform 
to  the  instructions  and  advisements  of  the  Commissioner  of  Indian  Affairs, 
and  to  do  premeditated  wrong  to  the  Cherokees. 


Mis.  No.  a  .  ■     ■  /•  ■•  ■■  .:   ';       55 

■  An  aged  fernaie  Cherokee,  J.  Y.  Ostah,  a  widow,  and  her  three  children, 
were,  in  the  year  1S18,  duly  registered  for  a  reservation,  inckiding  her 
residence  and  improvements.  She  continued  to  reside  thereon  until  her 
land  was  sold  under  the  law  of  Tennessee  as  of  the  public  domain  of  that 
State:  the  purchasers  pulled  down  her  house  and  turned  her  to  the  winds. 
In  that  condition  the  agent  of  the  United  States  gave  her,  in  charity,  two 
blankets,  worth  about  ten  dollars.  The  reservation  of  640  acres  of  land 
was  worth  not  less  than  three  thousand  dollars.  No  agreement  of  sale  of 
the  land  is  proved  even  by  parol — no  Avriting  is  pretended.  By  the  law  of 
Tennessee  to  prevent  frauds  and  perjuries,  no  verbal  agreement  for  the  sale 
of  land  is  valid.  Under  the  circumstances,  if  a  sale  of  the  tract  of  land 
worth  three  thousand  dollars  for  the  two  blankets  worth  ten  dollars  had 
been  sworn  to,  yet  the  value  of  the  land,  compared  witli  the  value  of  the 
two  blankets,  would  have  been  internal  evidence  of  fraud,  imposition,  and 
duress;  yet  commissioners,  two  of  the  commissioners,  determined  that  J. 
Y.  Ostah  had  sold  her  land  for  tw-o  blankets,  and  therefore  rejected  the 
claim  of  her  children,  she  having  died.  A  rehearing  and  award  to  the 
children,  of  the  value  of  the  reservation,  was  moved  before  commissioner.'? 
Harden  and  Brewster,  and  they  rejected  the  claim  on  14th  January,  1S47. 

Oo-loocha,  a  widowed  Cherokee,  the  head  of  her  family  of  two  chil- 
dren, was  duly  registered  in  iSlS  for  her  reservation,  to  include  her  resi- 
dence and  improvements.  She  continued  to  reside  thereon  for  years, 
when  she  married  the  Indian  chief  Path  Killer,  and  went  with  her  hus- 
band to  his  residence,  leaving  her  goods  in  her  house  and  her  live  stock 
on  the  land.  She  died  soon  after  she  went  with  her  husband  to  Turkey 
town.  The  commissioners  adjudged  that  Oo-loocha  had  forfeited  the  res- 
ervation by  removal;  and  the  claim  of  her  son,  Ahama,  was  rejected  by 
commissioners  Kennedy  and  Wilson.  Commissioners  Harden  and  Brews- 
ter were  moved  on  the  9th  November,  1846,  for  an  allowance  of  the  claim 
of  Ahama,  the  son  of  Oo-loocha;  they  rejected  the  claim  on  the  loth 
January,  1847.  In  the  opinion  of  these  commissioners,  neither  obedience 
to  her  husband,  nor  her  continuous  possession  by  her  goods  in  her  house, 
and  her  live  stock  on  the  farm,  could  save  Oo-loocha  from  the  charge  of  a 
voluntary  abandonment,  removal,  and  forfeiture;  marriage  and  coverture 
was  no  saving;  to  obey  and  go  with  her  husband  was  no  excuse;  to  retain 
possession  by  her  household  goods  and  by  her  live  stock  left  on  the  prem- 
ises, was  not  legal;  in  the  opinion  of  the  commissioners,  her  acts  were  ad- 
judged to  amount  toa  voluntary  removal,  dund  forfeiture  of  the  reservation. 

The  commissioners,  Kennedy  and  Wilson,  were  under  instructions  from 
the  War  Department,  by  letter  of  Mr.  Harris  of  June  19,  1838,  that  "no 
payment  whatever  should  be  made  on  account  of  reservation  claims  under 
the  treaties  of  1817  and  1819;"*'  and  Messrs.  Harden  and  Brewster  were 
under  the  instructions,  (as  before  cited,)  that  claims  passed  upon  by  a  for- 
mer board  must  be  rejected.  The  commissioners  must  either  obey  instruc- 
tions or  lose  their  places  and  emoluments  of  office:  it  was  more  convenient 
to  the  commissioners  that  the  children  of  J.  Y.  Ostah  and  of  Oo-loocha 
should  lose  compensation  for  their  reservations,  than  for  the  commission- 
ers to  disobey  instructions  and  lose  their  places. 

The  agent  of  the  United  States,  in  taking  enrolments  of  Indians  for  re- 
moval to  Arkansas  under  the  treaty  of  1828,  prepared  his  books,  and  headed 
ihe  columns  for  signatures,  by  the  appropriate  allusion  to  the  treaty  oflS2S 
and  enrolments  under  it,  with  a  conveyance  and  release  to  the  United 


5Q         ■     .■■  ,.  .'.  Mis.  No.  8. 

States  of  the  reservation.?;  to  be  undersigned  Ly  those  wlio  should  enroT  for 
Arkansas  according  to  the  treaty  of  182S,  with  a  saving  at  the  foot  tliat  tt)ey 
were  to  be  paid  for  injproven:ients  left,  "  and  to  receive  all  other  interests- 
from  former  or  future  treaties  that  have  or  may  be  concluded  betAveen  the 
government  of  the  United  States  and  their  tribe  east  of  the  Mississippi." 

Under  this  same  heading,  Abraham  Davis  signed  his  name  as  enrohing  for 
removal  from  the  east  side  of  the  Mississippi  river  to  Arkansas,  under  the  terms 
of  the  treaty  of  1828.  This  same  Abraham  Davis,  having  for  wife  a  Chero- 
kee woman,  and  three  children,  had  duly  registered  himself  and  his  family, 
five  in  number,  in  the  year  1818,  for  a  reservation  under  the  treaty  of  ]  817, 
as  shown  by  the  register  and  by  his  certificate,  to  include  his  improvement 
one  and  a  quarter  mile  southeast  of  Gunter's.  In  pursuance  of  the  last 
enrolment,  Abraham  Davis  removed  to  Arkansas.  After  the  treaty  of  1 835^ 
Abraham  Davis  presented  his  claim  to  commissioners  Kennedy,  Wilson 
and  Liddell,  for  compensation  for  his  reservation.  The  commissioners, 
Kennedy  and  Wilson,  quote  the  conveyance  and  release  in  part,  omitting 
the  saving  at  the  foot  of  it,  and  rejected  the  claim,  because,  as  they  say,  he 
had  sold  and  conveyed  his  reservation  to  the  United  States  and  had  re- 
moved from  it.  The  decision  on  its  face  carries  these  enormities  and  absurd- 
ities: 1st.  In  quoting  only  a  part  of  the  release,  and  garbling  its  terms.  2d. 
In  denyiirg  to  the  party  the  compensation  promised  by  the  treaty  of  1828,. 
under  faith  of  which  the  enrolment,  release  and  removal  to  Arkansas  were 
made.  3d.  In  making  a  removal  invited  by  the  TTnited  States  and  evidenced 
by  the  very  instrument  quoted,  and  by  the  book  from  which  it  was  quoted, 
such  a  removal  as  barred  his  right  to  the  value  of  his  reservation  under  the 
treaty  of  1828,  and  under  the  treaty  of  1835-36. 

Thomas  Davis,  the  only  surviving  child  of  Abraham  Davis  and  wife, 
having  the  entire  right  of  the  remainder  in  fee  simple  in  his  o»vn  right,  and 
as  heir  to  his  deceased  father  and  mother,  brother  and  sister,  presented  his 
claim  before  commissioners  Harden  and  Brewster,  who  rejected  it  on  the 
23d  March,  184T.  Messrs.  Kennedy  and  W'ilson  were  under  instructions 
firom  the  office  of  Indian  affairs,  "  that  no  payment  whatever  should  be 
made  on  account  of  reservation  claims  under  the  treaties  of  1817  and  1819," 
and  therefore  they  must  reject  the  claim  upon  some  pretence,  no  matter 
how  absurd.  Messrs.  Harden  and  Brewster  were  under  instructions  con- 
tained in  the  letter  of  Mr.  Medill,  of  the  Indian  office,  before  mentioned. 

Such  decisions  bear  the  brand  on  their  front  of  intentional  wrong. 

Betsey  Woodward  registered  herself  and  child  under  the  treaty  of  1817, 
and  continued  to  reside  on  the  reservation  un^il  she  married  Moses  Elder,  in 
1820,  who  was  killed  in  the  same  year.  She  enrolled  for,  and  removed  to- 
Arkansas  under  the  treaty  of  1828,  having  signed  the  enrolment  and  release 
before  mentioned.  The  claim  to  compensation  for  her  reservation  was  re- 
jected, because  she  had  removed  to  Arkansas  in  1834  and  signed  the  release 
aforementioned,  and  because  she  had  married  and  ^one  with  her  husband 
in  1820. 

James  M'Intosh  registered  for  his  reservation  under  the  treaty  of  18175. 
and  continued  to  reside  on  his  reservation  until  1820;  white  men  settled 
on  it  without  leave,  and  threatened  to  kill  him;  he  went  ofi"  under  fear  of 
his  life,  as  proved  by  witnesses.  Some  proof  was  introduced  to  prove  a 
verbal  sale  in  1819,  No  evidence  in  writing  was  produced  or  pretended. 
His  claim  was  rejected  because  of  the  pretended  sale  and  voluntary  removal. 

Jesse  Scott  registered  himself,  wife,  and  two  children  for  reservation 


Mis.  No.  8.  •  '  57 

under  the  treaty  of  1817,  and  continued  to  reside  on  it  until  he  signed  the 
enrolment  and  release  aforementioned,  in  1833,  and  removed  to  Arkansas. 
Commissioners  Kennedy  and  Wilson  re;iected  the  application  of  Jesse 
Scott  for  compensation  for  his  life-estate,  because  of  his  said  release  and 
removal  to  Arkansas;  although  the  government  invited  the  removal;  al- 
though the  release,  on  its  face,  showed  the  intent  and  cause,  and  contained, 
in  law  and  in  fact,  a  saving  of  the  right  to  compensation.  The  claim  of 
the  children  of  Jesse  Scott  was  rejected  on  the  grounds  for  rejecting  the 
claim  of  the  father. 

Isaac  Yan  registered  himself  and  wife  for  reservation  under  the  treaty  of 
1817;  continued  to  reside  on  it  in  Tennesse,  until  one  Corbit,  in  1819!, 
moved  into  the  house,  and  by  threats  and  force  kept  possession.  In  1832 
Isaac  Yan  enrolled  for  Arkansas,  signing  the  release  before  mentioned. 
On  his  application  for  compensation  a  witness  swore  that  "  he  had  heard  a 
deed  read"  from  Yan  to  one  Bo^^d  for  the  reservation  of  Yan  in  consider- 
ation of  :^1,100.  Without  any  proof  of  the  execution  of  the  deed,  without 
proof  of  delivery,  without  production  of  the  deed,  or  of  a  copy,  without 
any  proof  of  payment,  but  upon  such  equivocal  parol  proof  of  a  writing 
heard  of,  not  produced;  upon  such  hearsay  of  sale,  and  upon  the  release 
in  the  enrolment  aforementioned,  the  commissioners  rejected  Yan's  claim  for 
compensation.  No  court  of  justice  intending  to  do  right  would  have  re- 
ceived such  hearsay,  such  hearing  of  a  deed.  By  law,  land  can  only  be 
bargained  and  sold  by  writing.  By  the  12th  section  of  the  act  of  Con- 
gress of  1802,  March  30,  before  quoted,  an  Indian  could  make  no  grant, 
sale,  or  conveyance  to  an  individual  purchaser;  such  sale  and  purchase 
were  by  that  act  declared  void.  By  the  rules  of  evidence,  that  wriich  by 
the  institution  of  law  must  exist  by  deed,  must  be  proved  by  the  produc- 
tion of  the  deed,  unless  in  extremity,  as  loss,  of  the  deed  by  fire  or  other 
casualty,  which  must  be  proved.  That  it  is  dangerous,  and  against  the 
settled  rules  of  law  and  evidence,  to  suffer  proof  by  witnesses  ''  that  there 
was  such  a  deed  which  they  have  heard  and  read,''''  is  well  shown  by  the 
court  in  Doctor  Layfield's  case,  (10  Coke,  92,  (b;)  and  in  Littleton,  sect. 
365;  and  in  Co.  Litt.,  225.)  To  every  deed  there  arc  two  things  requisite: 
the  one  that  it  be  sufficient  in  law,  of  which  the  judges  are  to  determine; 
the  other  concerns  sealing  and  delivery,  which  are  matters  of  fact,  to  be 
proved.  Men  would  hold  their  landed  estates  b^'-  a  very  feeble  tenure  if 
they  could  be  ousted  by  the  oath  of  a  witness  that  "he  heard  a  deed 
read,"  but  neither  had  read  it  himself  nor  knew  its  execution  and  delive- 
TY-,  nor  knew  that  any  payment  was  made,  and  when  not  a  copy  even 
was  produced  to  enable  the  judges  to  examine  its  legal  effect  and  suffi- 
ciency. And  yet  by  such  illegal  and  vague  oath  of  a  witness,  the  com- 
missioners deprived  Isaac  Yan  of  the  compensation  due  for  his  reservation, 
to  v/hich  he  was  entitled  by  the  registry  kept  by  the  agent  of  the  United 
States  now  on  file  in  the  War  Department. 

The  commissioners  were  instructed  and  advised  to  reject  claims  for  res- 
ervations, and  seized  any  pretext,  however  frivolous. 

The  last  example  shows  an  eagerness  to  destroy  a  right  by  admitting 
and  acting  upon  illegal  parol  testimony,  in  defiance  of  the  plainest  rules  of 
evidence  and  against  common  sense.  The  case  of  the  children  of  Culso- 
wee  shows  the  rejection  of  legal  parol  evidence. 

Culsowee  had  filed  the  declaration  of  her  intent  to  become  a  citizen  of 
the  United  States,  and  to  take  a  reservation  for  herself  and  children  under 


58        ;  .    '-  Mis.  No.  8. 

the  treaty  of  1817.  The  agent  of  the  United  States  gave  her  a  certifioate 
of  her  right  to  a  reservation  to  include  her  improvements.  The  existence 
of  the  certificate  and  the  loss  of  it  were  proved.  The  only  objection  to  her 
claim  Avas  that  her  name  did  not  appear  on  the  register  furnished  by  the 
War  Department  to  the  commissioners.  In  every  matter  the  claim  of  Cul- 
sowee  was  complete. 

The  children  of  Culsowee  presented  their  claim  and  adduced  the  proof. 
The  claim  was  rejected  because  the  agent  of  the  United  States  had  omit- 
ted to  register  in  the  book  kept  by  himself,  and  wholly  written  by  himself, 
the  declaration  and  application  of  Culsowee,  whereof  he  had  given  a  cer- 
tificate. 

Culsowee  could  not  make  the  agent  insert  her  name  in  his  own  book,  writ- 
ten wholly  by  himself.  She  had  no  control  over  that.  She  was  not  respon- 
sible for  the  accidental  omission  of  the  agent  of  the  United  States.  She 
had  done  all  in  her  power;  all  that  the  treaty  required.  She  had  filed  her 
application  Avith  the  agent  of  the  United  States  "in  the  office  of  the  Chero- 
kee agent" — that  was  all  she  was  required  to  do;  all  she  could  do.  The 
agent  gave  her  a  certificate  of  the  fact  and  of  her  right.  No  principle  is 
more  firmly  settled  than  that  a  party  is  not  to  lose  his  or  her  right  by  the 
omission  of  a  public  officer  to  do  his  duty,  whether  by  accident,  neglect, 
or  by  design.  The  rule  of  evidence  is  well  settled,  that  if  a  bond,  a  deed, 
or  other  writing  is  destroyed  by  fire,  or  lost  by  time  or  accident,  the  right 
growing  out  of  the  written  instrument  is  not  lost.  The  accidental  loss  of 
the  instrument  does  not  demolish  the  fact  of  its  previous  existence,  and 
secondary  evidence  is  admissible  to  establish  the  fact  of  such  previous  ex- 
istence. 

In  the  case  of  Van,  the  commissioners  admitted  illegal  parol  evidence  by 
a  witness  "that  he  had  heard  a  deed  read,"  when  no  foundation  was 
laid  to  dispense  with  the  production  of  the  deed  if  it  had  been  sealed  and 
delivered,  and  when  such  hearsay,  or  '■'■  lieai-  read,''^  was  inadmissible  in 
any  state  of  the  case,  and  upon  such  illegal  evidence  the  commissioners  ad- 
judged against  the  claim  of  Van,  because  it  discharged  the  United  States. 
In  Culsowee's  case  and  her  children's  case,  legal  parol  evidence  was  re- 
jected; nothing  but  the  writing  itself  would  be  received.  Thus  these 
commissioners  could  blow  hot  and  cold;  contradictions  yes  and  no,  eodem 
flatu,  just  as  it  became  necessary  to  destroy  claims,  and  thereby  conform  to 
the  tenor  and  effect  of  instructions.  Mr.  Harris's  letter  says,  "  I  am  di- 
rected by  the  Secretary  of  War  to  instruct  you,  that  in  his  judgment  no 
payment  whatever  should  be  made  on  account  of  reservation  claims;"  "to 
enable  the  agents  of  the  government  to  arrive  at  the  truth,  such  measures 
as  may  seem  proper  will  be  adopted."  And  subsequent  instructions  from 
the  War  Department  of  2Sth  September,  1842,  of  20th  June,  1844,  and 
27th  August,  1846,  were  very  sufficient  to  give  the  cue  to  the  commission- 
ers to  make  war  against  all  claims,  per  fas  aut  nefas;  not  forgetting  the 
polished  instruction  of  Mr.  Harris  of  12th  December,  1837,  to  the  commis- 
sioners, when  sitfing  in  Tennessee,  to  select  and  employ  counsel  to  assist 
them  in  rejecting  claims  which  they  were  to  adjudicate;  and  the  very  re- 
fined and  modest  suggestion  of  Mr.  Medill,  Commissioner  of  Indian  Af- 
fairs, dated  War  Department,  office  Indian  affairs,  August  27,  1846,  to 
the  commissioners,  Messrs.  Harden  and  Brewster,  sitting  in  the  city  of 
Washington,  "  that  you  fully  and  freely  advise  with  this  department 
touching  the  matters  committed  to  you.".. 


Mis.  No.  8.  59 

The  claim  by  the  children  of  William  Jones,  deceased,  shows  that  their 
father,  said  William  Jones,  duly  registered  for  a  reservation  in  North  Caro- 
hna,  worth  at  least  fifteen  dollars  per  acre,  and  continued  to  reside  on  it 
and  to  cultivate  it,  until  it  was  surveyed  by  the  commissioners  of  North 
Carolina,  and  he  was  driven  off  by  the  white  men  and  was  killed  two  or 
three  years  after  he  took  the  reservation.  The  claim  of  the  children  was 
rejected.  1st.  Because  the  courts  of  North  Carolina  were  open  to  William 
Jones  for  the  forcible  expulsion.  2d.  Because  a  person  by  the  name  of 
Waka  alias  Peggy  Jones,  as  the  widow  of  William  Jones,  had  conveyed 
her  right  to  the  State  of  North  Carolina.  The  true  widow,  Peggy  Jones, 
filed  her  affidavit  that  she  had  never  sold  her  right.  The  magistrate, 
Samuel  Sanders,  certified  her  afiidavit,  and  that  from  the  general  character 
of  Peggy  Jones,  the  widow  of  William  Jones,  he  believed  the  statements 
in  her  affidavit  to  be  true.  Thus  it  was  evident  that  Waka  alias  Peggy 
Jones,  who  signed  the  deed,  was  not  Peggy  Jones  the  widow  of  William 
Jones.  But  the  commissioners  rejected  the  claim.  The  decision  that  the 
sale  by  the  widow  could  bar  the  vested  remainder  of  the  children,  was 
ridiculous;  the  inference  that  Waka  was  the  widow  of  William  Jones, 
without  proof  and  in  teeth  of  the  denial  on  oath  of  the  true  widow,  was 
equally  so;  and  the  decision  that  because  the  courts  of  North  Carolina  were 
open  to  William  Jones  for  damages  for  the  forcible  expulsion  from  the 
premises,  that  therefore  he  had  forfeited  his  right  to  the  land,  was  absurd; 
not  error  merely,  but  designed,  premeditated  wrong. 

Messrs.  Harden  and  Brewster  took  up  this  case,  in  the  absence  of  the 
children  of  William  Jones,  without  any  application  to  them,  and  affirmed 
the  decision  of  the  former  commissioners,  Kennedy,  Wilson,  and  Liddell, 
because  no  bill  of  review  or  assignment  of  errors  in  the  former  decree  had 
been  filed  with  them. 

Chunalusky  took  a  reservation  in  North  Carolina  under  the  treaty  of 
1819.  His  claim  for  compensation  was  rejected  under  the  pretext  that  he 
had  sold  to  the  agents  of  North  Carolina.  The  proof  is  clear  that  he  was 
told  by  the  agents  that  he  had  no  right  to  a  reservation;  but  that  as  he  had 
fought  bravely  under  General  Jackson,  against  our  Creek  enemies,  the 
agents  would  make  him  a  present  of  fifty  dollars  as  a  reward  for  his  ser- 
vices, and  obtained  his  mark  to  a  writing  represented  to  him  to  be  only  a 
receipt  for  the  fifty  dollars,  to  enable  them  to  show  how  they  had  disposed 
of  the  money.  The  proof  is  clear  that  the  writing  was  obtained  by  mis- 
representation and  fraud.  The  value  of  the  six  hundred  and  forty  acres 
of  land,  compared  with  the  fifty  dollars,  the  alleged  price  paid  for  it  to  the 
Indian  Chunalusky,  not  only  corroborates  the  parol  proof  of  imposition 
and  fraud,  but  is  in  itself  sufficient  evidence  of  an  undue  advantage  taken 
of  his  condition,  and  of  the  imposition  and  deceit. 

Hannah  Harlin's  claim  to  compensation  was  rejected  as  having  been  for- 
feited by  removal,  when  the  proof  was  clear  that  she  was  forcibly  expelled 
from  her  reservation. 

To  these  examples  of  adjudications  upon  reservations,  others  would  have 
been  added,  equally  forcible  and  convincing,  of  the  settled  purpose  to  do 
premeditated  wrong  to  the  Cherokees,  had  not  the  Commissioner  of  Indian 
Affairs  (Mr.  Medill)  refused  to  the  counsel  for  the  Cherokees  the  perusal 
of  the  recorded  decisions  of  the  commissioners,  for  causes  set  forth  in  his 
letter  of  September,  1847,  in  answer  to  a  w"ritten  request.  To  that  request 
and  answer  of  Mr.  Medill,  and  the  reply  thereto  of  our  counsel,  remaining 


60*  Mis.  No.  8. 

in  the  office  of  Indian  affairs,  we  refer,  for  the  purpose  of  showing  the 
•grounds  of  Mr.  Medill's  refusal,  and  the  continued  purpose  of  inflicting 
wrongs  upon  the  Cherokees.  If  any  shght  inaccuracies  shall  be  found  in 
this  memorial  as  to  the  character  of  the  decisions,  and  the  principles  of  the 
adjudications^  they  will  find  an  apology  in  the  refusal  df  access  to  the 
records. 

In  further  illustration  of  the  temper  and  disposition  of  the  commissioners 
to  do  palpable  wrong  to  the  Cherokees,  we  refer  to  the  decision  in  the  case 
of  the  children  of  Lydia  Fields.  Before  the  claim  was  presented  to  the 
board,  before  the  evidence  was  prepared,  the  comimissioners  found  two  de- 
positions taken,  (as  parts  only  of  the  testimony,)  which  depositions  had 
been  lodged  for  safe-keeping  until  the  whole  testimony  should  be  completed. 
Upon  those  depositions,  without  any  appearance,  v/ithout  any  claim  pre- 
sented for  or  on  behalf  of  the  children  in  their  absence,  the  commissioners, 
of  their  own  mere  will,  unsolicited  and  unasked,  took  up  the  papers  and 
entered  a  decision  rejecting  the  claim,  and  had  it  recorded. 

The  commissioners  surely  ought  to  have  known  that  no  court  had  any 
rightful  authority,  any  jurisdiction,  to  decree  against  persons  not  in  court, 
who  had  not  appeared,  who  had  not  presented  a  claim,  who  had  never  sub- 
mitted to  their  jurisdiction.  Such  a  proceeding  argues  either  gross  igno- 
rance, or  a  keen  appetite  to  do  premeditated  wrong;  either  of  which  is  dis- 
graceful to  the  judge  and  disgusting  to  the  community.  This  transaction 
is  contrary  to  the  principles  of  natural  justice,  of  universal  obligation.  No 
person  can  be  concluded  by  a  decision  pronounced  in  his  absence,  in  which 
he  was  unheard;  to  which  proceeding  he  was  not  a  party,  either  by  an  ap- 
pearance as  a  plaintiff  or  as  a  defendant,  and  without  notice,  actual  or  con- 
structive, to  appear  and  defend  his  rights.     Such  a  proceeding  is  a  nullity. 

Of  the  lilvc  pruriency  for  rejecting  claims  in  advance  before  they  were 
presented,  other  examples  are  to  be  found  in  the  proceedings  of  commis- 
sioners Harden  and  Brewster,  in  the  catalogue  of  twelve  hundred  and  one 
rejected  claims,  which,  with  self-cOmmendation  and  complacency,  they 
have  reported  to  the  President,  along  with  twenty-eight  only  allowed,  in 
whole  or  in  part,  costing  the  treasury  no  more  than  thirty-one  thousand 
five  hundred  and  seventy-eight  dollars  and  fifty  cents. 

The  refusal  of  the  Commissioner  of  Indian  Affairs  to  suffer  the  public 
records  of  the  decisions  of  the  commissioners  to  be  inspected  by  counsel, 
cuts  off  many  specifications  of  decisions  palpably  and  absurdly  erroneous, 
and  adds  another  grievance  to  the  catalogue  of  wrongs  which  have  been 
heaped  upon  the.  Cherokees  by  the  Commissioner  of  Indian  Affairs.  Hav- 
ing inflicted  injuries  hy  erroneous  interpretations  of  the  treaties  and  im- 
proper instructions  to  the  commissioners,  the  Commissioner  of  Indian 
Affairs  now  seeks  to  hide  the  wrongs  done  to  the  claimants  by  locking  up 
the  records  of  the  decisions  of  the  commissioners,  thereby  hoping  to  pre- 
vent the  exposure  of  the  palpable  and  glaring  eiTors,  so  manifestly  improper 
as  to  bear  internal  evidence  of  prem.editated  wrongs  and  passive  obedience 
to  the  erroneous  and  meddlesome  instructions  of  the  Commissioner  of  In- 
dian Aflairs  and  influence  of  the  War  Department. 

By  withholding  the  records,  it  was  intended  that  the  general  presump- 
tion of  fairness  in  the  conduct  of  the  business,  and  of  the  correctness  of 
the  decisions  of  the  board  of  commissioners,  should  be  indulged. 

The  President  of  the  United  States  has,  in  his  late  message,  indulged 
such  presumption;  and  relying  upon  that;  and  upon  the  communications 


Mis.  No.  8.  ~  61 

to  him  made  by  persons  interested  to  hide  their  own  misconduct,  he  has 
said,  "  The  commissioners  appointed  under  the  act  of  June  27th,  1846,  to 
settle  claims  arising  under  the  treaty  of  1835-'36  with  that  tribe,  have 
executed  their  duties;  and  after  a  patient  investigation  and  a  full  and  fair 
examination  of  all  the  cases  brought  before  them,  closed  their  labors  in  the 
month  of  July  last.  This  is  the  fourth  board  of  commissioners  which 
has  been  organized  under  this  treaty.  Ample  opportunity  has  been  afforded 
to  all  those  interested  to  bring  forward  their  claims.  No  doubt  is  enter- 
tained that  impartial  justice  has  been  done  by  the  late  board,  and  that  all 
\'alid  claims  embraced  by  the  treaty  have  been  considered  and  allowed. 
This  result,  and  the  final  settlement  to  be  made  with  this  tribe  under  the 
treaty  of  1846,  which  will  be  completed  and  laid  before  you  during  your 
session,  will  adjust  all  questions  of  controversy  betvv^een  them  and  the 
United  States,  and  produce  a  state  of  relations  with  them  simple,  well- 
defined;,  and  satisfactory." 

Your  memorialists,  without  intending  any  disrespect  to  the  President  of 
the  United  States,  are  compelled,  in  truth  and  in  defence  of  their  rights,  to 
say  that  the  President  has  been  misinformed;  that  his  ear  has  been  abused; 
that  his  confidence  has  been  misplaced;  that  the  commissioners  appointed 
under  the  act  of  1846  have  not  executed  their  duties;  that  they  have  not 
investigated  the  claims  fully  and  fairly;  that  impartial  justice  has  not  been 
done;  that  ample  opportunity  has  Jiot  been  afforded  to  the  claimants;  that 
all  just  claims  have  not  been  allowed. 

On  the  contrary,  your  memorialists  allege,  aver,  and  are  ready  to  prove 
that  the  proceedings  of  the  said  commissioners  appointed  under  the  act  of 
1846  did  not  resemble  the  fairness,  patience  of  investigation,  and  means 
of  attaining  impartial  justice,  which  usually  have  attended  courts  of  judi- 
cature. No  notice  was  given  to  any  claimant  that  his  case  was  taken  up 
for  adjudication;  no  arguments  were  allowed  to  be  read  to  the  board;  no 
opinion  or  decision  was  read  at  the  board  to  the  claimants  or  their  attor- 
neys. The  fixed  predetermination  was  to  obey  the  instructions  issued 
from  the  War  Department;  to  reject  claims;  not  to  examine  them  impartially. 

It  is  notorious  that  one  of  the  commissioners  was  absent  from  the  city  of 
Washington,  and  from  his  duties  as  commissioner  under  the  Cherokee 
treaty,  by  far  the  greater  portion  of  the  year,  attending  to  other  pursuits  and 
spending  his  time  in  Philadelphia;  and  the  journals  are  falsely  made  to 
read  as  if  the  board  met,  when  one  of  the  commissioners  was  not  present, 
but  far  away,  as  before  stated,  and  so  repeatedly  and  so  long  absent  as  to 
have  caused  complaint  and  remonstrance;  and  a  letter  to  him  at  Philadel- 
phia was  written  by  the  Commissioner  of  Indian  Affairs,  to  return  to  the 
duties  of  the  commission.  In  defiance  of  the  fleets,  the  commissioners, 
by  a  report  to  the  President  of  the  United  States,  bearing  date  July  23, 
1847,  and  by  him  referred  to  the  office  of  Indian  affairs,  and  therein  re- 
maining, stated  that  the  board  was  organized  on  the  3Ist  July,  1846,  and 
closed  on  the  23d  of  July,  1847;  and  from  that  time  to  the  present  (23d 
July,  1847,)  it  "  has  been  constantly  in  session  and  kept  open  for  the  con- 
venience of  claimants,  for  the  purpose  of  filing  cases  and  examining  papers 
and  records  in  the  office  of  the  commission,  and  at  the  same  time  the  com- 
missioners have  been  engaged  in  investigation  of  the  claims  presented  and 
rendering  decrees  therein."  Such  a  report  could  not  be  otherwise  than 
matter  of  astonishment  to  those  who  had  attended  their  sittir.gs  when  held, 
and  had  witnessed  the  absence  of  one  of  the  commissioners  so  repeatedly 
and  for  such  long  intervEds. 


62  \      Mis.  No.  8. 

'■■■    y 

The  commissioners  required  all  claims  to  be  filed  with  the  proofs,  in 
writing,  by  the  25th  December,  1846,  but  enlarged  the  time  to  the  1st  day 
of  January,  1847.  The  notice  was  published  in  certain  newspapers,  com- 
mencing on  the  24th  September,  1846,  as  they  say,  giving  about  three 
months  from  the  first  publication  for  filing  the  proofs  in  writing.  How- 
soever sufficient  such  notice  and  time  to  the  Cherokee  claimants,  dispersed 
in  their  country  on  the  Arkansas  and  White  rivers,  to  get  their  proofs  in 
writing  and  send  them  to  Washington,  in  the  District  of  Columbia,  might 
appear  to  the  commissioners,  yet  to  practical  business  men,  and  in  the  eye 
of  impartial  reason,  such  a  notice  to  such  a  people,  of  a  newly  organized 
court,  with  such  requirements,  seems  wholly  insufficient.  In  matter  of 
fact  it  was  insufficient;  and  from  the  doings  of  the  commissioners,  it  wears 
the  appearance  of  having  been  devised  under  the  false  guise  of  notice  and 
opportunity  to  the  claimants,  to  enter  judgments  against  them  by  surprise 
and  want  of  preparation. 

The  commissioners,  during  the  short  period  of  time  in  which  they  ac- 
tually were  in  session,  report  that  they  had  decided  twelve  hundred  and 
twenty-nine  cases,  allowed  twenty  eight,  and  rejected  twelve  hundred  and 
one.  This  wonderful  despatch  in  getting  over  cases  in  the  short  space  of 
time  whilst  the  two  commissioners  were  together,  resembles  the  quick  pro- 
gress of  the  school  boy  who  got  over  all  his  lessons  by  laying  down  his 
book  and  jumping  over  it. 

They  did  not  comprehend  their  powers,  duties,  and  solemn  obligations, 
nor  the  extent  and  duration  of  their  commissions.  The  law  making  appro- 
priation for  the  expenses  of  the  commission,  approved  27th  June,  1846, 
provided  "  that  the  commission  hereby  revived  shall  continue  for  one  year, 
and  no  longer."  Under  that  act  the  commissions  fo  Messrs.  Harden  and 
Brewster  respectively  bear  date  on  the  twenty-third  day  of  July,  1846, 
for  one  year,  (and  at  the  pleasure  of  the  President  during  that  time.)  The 
commission,  therefore,  expired  by  its  own  limitation  on  the  22d  day  of 
July,  1847.  They  were  in  commission  on  the  23d  day  of  July,  1846, 
and  any  act  by  them  done  within  the  pale  of  their  commission  on  that  day 
would  have  been  legal  and  valid. 

Judge  Blackstone,  in  his  Commentaries,  (vol.  1,  p.  463,)  says:  "Full  age, 
in  male  or  female,  is  twenty-one  years,  which  age  is  completed  on  the  day 
preceding  the  anniversary  of  a  person's  birth." 

So  in  l^itzhugh  vs.  Dennington,  (2  Lord  Raymond,  1096:)  "  If  a  man 
were  born  the  first  of  February,  and  lived  to  the  thirty-first  of  January, 
twenty-one  years,  and  then  malf.es  his  will  after  five  o'clock  in  the  morn- 
ing, and  dies  by  six  at  night,  that  will  is  good,  and  the  devisor  is  of  age." 

So,  also.  Anonymous,  1  Salk.,  44;  per  Holt,  Ch.  Justice. 

In  Clayton's  case,  5  Coke's  Rep.,  vol.  1:  "Where  the  indenture  of  lease 
for  three  years  henceforth  was  delivered  at  four  o'clock  in  the  afternoon  of 
the  twentieth  of  June,  it  was  resolved  that  this  lease  should  end  the  nine- 
teenth day  of  June  in  the  third  year,  for  the  law  in  this  computation  doth 
reject  fractions  and  divisions  of  a  day." 

In  Coke's  3d  Institute,  chap.  7,  p.  53,  how  the  year  and  a  day  shall  be  ac- 
counted: "If  the  sU'oke  or  poyson  be  given  the  first  day  of  January,  yet  the 
year  shall  end  the  last  day  of  December;  for  though  the  stroke  or  poyson, 
&c.  were  given  in  the  afternoon  of  the  first  of  January,  yet  that  shall  be 
accounted  a  whole  day,  for  regularly  the  law  maketh  no  fraction  of  a  day." 

In  3  Dyer's  Rep.,  p.  286,  case  43,  it  was  adjudged  that  a  lease  made  on 
the  8th  day  of  May  included  that  day  in  its  commencement. 


Mis.  No.  8.  ..  m 

The  decision  in  the  case  of  tlie  King  vs.  Addeiiy,  2  Douglas,  p.  464,  con- 
curs with  the  doctrine  of  the  cases  before  cited. 

It  is  clear  that  the  day  on  which  the  commissions  bear  date,  July  23, 
1846,  is  included  in  the  commencement  of  the  commission,  and  that  the 
commission  ended  on  the  twenty-second  day  of  July,  1847;  yet  Messrs. 
Harden  and  Brew  ster,  on  the  twenty-third  day  of  July,  184T,  rejected  claims 
as  if  their  commissions  had  not  expired;  every  decision  made  by  them  on 
the  twenty-third  of  July,  1847,  is  null. 

Other  evidences  of  their  incompetency,  unfitness,  palpable  errors,  and 
passive  obedience  to  the  instructions  of  the  War  Department,  are  furnished 
by  the  records  of  their  decisions.  They  took  up  claims  not  presented  by 
the  persons,  and  rejected  them,  in  hot  haste  to  decide  in  favor  of  the  United 
States,  to  swell  the  list  of  rejected  claims,  and  save  the  treasury  of  the  United 
States  at  the  expense  of  the  faith  of  solemn  treaties  and  honor  of  the  United 
States,  supposing  that  their  decisions,  howsoever  erroneous  in  matters  not 
susceptible  of  doubt,  but  wearing  the  appearance  of  premeditated  wrong, 
would  nevertheless  be  beyond  all  remedy,  and  save  the  treasury  of  the 
United  States;  and  such  seems  to  have  been  the  notion  of  Mr.  Medill,  the 
Commissioner  of  Indian  Affairs,  in  his  letter  refusing  access  to  the  records 
of  the  decisions  of  the  commissioners.  These  men  seem  to  have  taken 
license  to  do  wrong,  because  there  was  no  court  of  errors  and  appeals  hav- 
ing cognizance,  as  an  appellate  tribunal,  to  review  and  reverse  their  palpable 
errors  and  premeditated  wrongs. 

Some  claims  for  pre-emptions  were  brought  before  the  second  board  of 
commissioners,  Messrs.  Eaton  and  Hubley,  and  allowed,  before  they  were 
dismissed  from  office.  Such  disobedience  to  the  instruction  "  that  there 
are  no  pre-emption  rights — they  were  provided  for  by  the  12th  article  of  the 
original  treaty,  but  abrogated  by  the  1st  of  the  supplemental  articles,  and 
never  had  more  than  an  inchoate  existence,"  with  that  other  act  of  disobe- 
dience in  allowing  a  claim  '^virtually  rejected"  by  the  former  board,  by  a 
decision  manufactured  by  the  War  Department,  notwithstanding  the  in- 
struction "  that  no  case  which  has  been  adjudicated  by  the  former  board  is 
open  to  your  examination,"  was  too  sinful  to  be  endured  at  the  War  De- 
partment.    Messrs.  Eaton  and  Hubley  were  dismissed. 

The  reasoning  of  the  Commissioner  of  Indian  Affairs  upon  the  12th  ar- 
ticle of  the  original  treaty  and  1st  article  of  the  supplement,  that  claims 
to  compensation  for  pre-emptions  should  be  rejected  because  they  "never  had 
more  than  an  inchoate  existence,  which  is  gone,"  did  not  satisfy  Mr.  Harden 
that  the  compensation  therefor  promised  by  the  third  supplemental  article 
should  be  disallowed.  Mr,  Brewster  differed  from  Mr.  Harden.  The  dif- 
ference was  certified  to  Mr.  Attorney  General  Clifibrd,  who  agreed  in 
opinion  with  Mr.  Brewster;  and  so  this  last  commission  not  only  rejected 
all  applications  for  compensation  for  pre-emptions,  but  having  been  furnished 
with  a  list  of  all  persons  to  whom  certificates  for  pre-emptions  had  been 
granted,  all  were  taken  up  and  rejected  without  regarding  the  non-appear- 
ance of  the  persons. 

Not  only  in  pre-emption  cases,  but  in  cases  of  reservations  and  damages 
under  the  1 6th  article,  after  a  written  application  to  the  board  not  to  take 
them  up  for  adjudication  until  further  proof  and  argument  should  be  filed, 
these  were  taken  up  and  rejected.  The  spirit  and  settled  purpose  to  reject 
claims  presented  and  not  presented,  so  as  to  bar  the  claimants  and  exon- 
erate the  treasury,  by  the  notion  that  rejected  claims  would  not  be  within 


64  •  ■   Mis.  No.  8. 

the  jurisdiction  of  any  future  board  which  might  be  instituted,  was  mani- 
fested by  this  fourth  board  in  the  manner  of  conducting  their  proceedings. 
as  well  as  in  the  decisions  wliich  were  given. 

The  case  of  Nancy  Reed  and  her  children,  claiming  the  compensation 
for  the  reservation  taken  by  William  Reed  as  the  head  of  the  family,  waS; 
on  the  15th  July,  184T,  certified  to  Mr.  Attorney  General  Clifford  as  npon 
a  difference  of  opinion  l)etween  the  two  commissioners,  involving  the  ques- 
tion how  far  the  act  of  the  head  of  the  family,  the  tenant  for  life,  could  affect 
the  dower  of  the  wife  and  the  remainder  in  fee  to  the  children.  In  this 
proceeding  there  are  features  of  a  peculiar  character,  deserving  particular 
notice. 

The  difference  of  opinion,  and  certificate  thereof  to  the  Attorney  General 
for  his  decision,  bear  date  on  the  1.5th  of  July,  1847;  the  commis- 
sion expired  on  the  22d  of  July,  1847,  (as  before  explained;)  the  opinion 
of  the  Attorney  General  bears  date  on  the  22d  July,  1847,  which  was  on  the 
day  of  the  expiration  of  the  commission ;  and  on  the  23d  day  of  July, 
1847,  after  Messrs.  Harden  and  Brewster  were  out  of  office  by  the  limita- 
tion of  their  commissions,  respectively,  they  entered  their  decision  on  the 
record  of  their  proceedings,  rejecting  the  claim  of  Nancy  Reed  (for  the 
value  of  her  dower)  and  of  the  children  for  their  estate  in  fee. 

Another  matter  remarkable  is,  that  decisions  by  the  commissioners, 
without  difference  of  opinion;  involving  the  like  principle,  had  been  before 
that  time  signed  and  recorded  in  other  cases,  viz:  On  the  4th  November, 

1846,  in  the  case  of  the  children  of  Joseph  Phillips;  on  the  13lh  Janu- 
ary, 1847,  in  the  case  of  Ahama,  son  of  Oo-loocha;  on  the  14th  January, 

1847,  in  the  case  of  the  children  of  J.  Y.  Ostah,  or  Spoiler;  in  the  case  of 
Thomas  Davis,  son  of  Abraham  Davis,  and  in  other  cases;  insomuch  that 
Mr.  Brewster  had  drawn  up  an  opinion  in  the  case  of  Nancy  Reed  and 
her  children,  expecting  it  to  be  signed,  as  former  opinions  had  been. 
After  the  difference  was  certified,  he  said,  in  his  opinion  and  argument  in 
writing,  as  submitted  to  the  Attorney  General,  that  he  had  frequently  ex- 
plained what  seemed  to  be  the  ''  interpretation  of  the  treaty  upon  the  sub- 
ject now  presented .  I  thought  it  unnecessary  to  iterate  and  reiterate  the 
reasons  which  I  had  assigned,  and  which  had  not  only  become  the  rule  of 
action  for  this  commission,  but  had  been  the  accepted  version  of  the  trea- 
ties ever  since  they  have  been  executed  " 

It  would  seem,  from  the  previous  decisions  recorded  without  difference 
of  opinion  between'  these  two  commissioners,  and  from  the  arguments  in 
other  cases  which  had  been  decided,  which  arguments  were  submitted  to 
the  Attorney  General  along  with  the  case  of  Nancy  Reed  and  children, 
either  that  Mr.  Harden  had  not  read  the  evidence  and  arguments  in  the 
cases  previously  decided  by  the  board,  and  was  unconscious  of  what  he 
had  decided  in  those  previous  cases,  or  that  the  difference  of  opinion  in 
the  case  of  Nancy  Reed  and  her  children,  at  that  late  period,  Avas  only 
colorable,  to  give  an  appearance  of  deliberation,  and  magnify  the  closing 
scene  of  the  tragedy  by  the  appearance  of  tlie  Attorney  General  as  dramatis 
persona. 

Other  features  in  the  case  not  to  be  overlooked  are,  that  the  reservation 
was  taken  by  Wm.  Reed,  a  white  man,  in  right  of  his  wife,  an  Indian 
woman,  and  her  children,  under  the  treaty  of  1819,  and  within  the  terri- 
tory of  North  Carolina  ceded  by  that  ti'eaty;  the  husband,  wife,  and  chil- 


Mis.  No.  8.  .05 

dren  continued  to  reside  on  it  until  the  year  1821,  when  he  became  in- 
temperate and  abandoned  his  family,  who  still  continued  to  reside  on  the 
reservation  until  it  was  sold  in  the  year  1824  by  the  State ^  and  the  family 
were  frightened  from  their  reservation  by  the  purchaser  and  a  crowd  of 
white  men.  The  claim  of  Nancy  Reed  and  her  children  was  resisted  by 
an  alleged  sale  to  the  State  of  North  Carolina,  made  by  Wm.  Reed,  after 
he  had  abandoned  his  family  and  taken  up  with  another  woman,  and  of 
course  after  the  forfeiture  by  removal  is  alleged.  The  alleged  sale  rests 
solely  upon  parol  evidence,  without  any  deed  or  writing  proved  to  have 
been  executed,  without  any  deed  or  writing  produced,  without  any  con- 
sideration paid  or  promised.  By  this  mode  of  proof  the  rules  of  evidence 
were  violated.  The  Attorney  General  and  Mr.  Brewster  grounded  their 
opinions  of  a  sale  upon  this  illegal  evidence  by  a  parol  of  a  matter  which, - 
by  institution  of  law,  must  be  by  v.a'iting.  There  was  no  proof  of  the  loss 
or  destruction  of  any  writing;  no  proof  of  the  execution  of  a  writing;  no 
writing  was  proved  in  evidence.  They  make  such  an  alleged  sale  one  of 
the  groundworks  of  their  opinion.  The  sale  by  the  owner  of  the  life 
estate,  upon  a  nameless  consideration,  after  he  had  forfeited  it  by  his  re- 
moval, as  is  alleged,  is  made  to  destroy  the  remainder  in  fee  of  the 
children,  and  the  right  of  dower  of  the  wife.  Again,  the  actofWm. 
Reed,  the  husband,  in  deserting  and  abandoning  his  wife  and  children, 
whilst  they  remained  on  the  reservation  taken  by  the  white  man  in  right 
of  his  Indian  wife  and  her  children,  is  adjudged  to  be  an  abandonment  of 
the  reservation — a  forfeiture.  The  estate  of  the  children  forfeited  by  the 
4;rime  of  the  father!! 

The  United  States  allege  a  sale,  in  bar  of  the  claim  to  compensation. 
If  a  sale  and  conveyance  was  made,  the  deed  is  the  evidence.  No  deed, 
no  writing,  was  produced. 

If  a  forfeiture  had  accrued  for  a  removal,  that  matter  should  have  been 
proved  and  insisted  on  by  inquest  and  office  found,  before  the  treaty  of 
New  Echota.  After  accepting  of  a  release  of  the  title  to  the  land,  and 
promising  payment  for  such  relinquishment,  it  is  too  late  to  go  behind  the 
release,  and  promise  of  money  for  it,  and  allege  a  previous  forfeiture  of  the 
title  to  the  lands.  To  go  back  and  incjuire  into  an  act  alleged,  over  which 
a  quarter  of  a  century  or  more  has  rolled,  for  the  purpose  of  raising  a  ques- 
tion of  forfeiture  for  removal,  whereby  to  escape  from  the  compensation 
promised  for  a  release  in  the  treaty  of  New  Echota,  would  seem  to  the  eye 
of  impartial  reason  a  matter  too  antiquated,  too  excessively  stale,  to  be  used 
by  the  government. 

The  Attorney  General  Clifford  has  said  in  his  opinion,  speaking  of  the 
8th  article  of  the  treaty  of  New  Echota,  "  It  is  not  a  conveyance,  but  a 
compact."  ''The  United  States  contracted  '  to  give^  when  the  conditions 
were  performed.  It  was  but  a  covenant  to  grant,  and  created  no  estate,  if 
the  head  of  the  family  removed  from  the  premises  and  abandoned  the 
same." 

The  condition  precedent  to  be  performed  so  that  the  esta?e  might  vest  for 
life  to  the  head  of  the  Indian  family,  with  remainder  in  fee  to  the  children^ 
and  dower  to  the  wife,  according  to  the  8th  article  of  the  treaty  of  1817,  (or  2d 
article  of  the  treaty  of  1819,)  was  the  election  to  become  a  citizen  of  the 
^United  States,  signified  by  the  register  of  the  names,  ''to  be  filed  in  the  of- 
fice of  the  Cherokee  agent."  This  condition  was  performed  on  the  9th  of 
August,  1819,  and  the  family  continued  to  reside  on  the  reservation  as  be- 
5 


m  Mis.  No.  S. 

fore  mentioned.  By  the  performance  of  this  condition  precedent  the  estate 
vested  in  "William  Reed  for  his  life,  with  the  remainder  in  fee  to  the  chil- 
dren, (then  born  and  living  on  the  land,)  with  the  right  of  dower  to  the 
wife. 

But  the  Attorney  General  speaks  of"  conditions"  to  be  performed.  "It 
was  but  a  covenant  to  grant,  and  created  no  estate,  if  the  heed  of  the 
family  removed  from  the  premises."  Here  the  Attorney  General  has  mis- 
taken a  subsequent,  negative  condition  concerning  removal,  for  non  ob- 
servance, whereof  a  vested  estate  was  defeasible,  and  to  return  to  the 
grantor,  for  a  precedent  affirmative  condition  to  be  performed  before  the 
estate  could  take  effect.  It  is  as  great  a  blunder  as  that  of  putting  the  cart 
before  the  horse. 

The  proviso  in  the  Sth  article  is,  "that  if  any  of  the  heads  of  families, 
for  whom  reservations  may  be  made,  should  remove  therefrom,  then,  and 
in  that  case,  the  right  to  revert  to  the  United  States."  How  could  the 
right  revert  or  return  to  the  United  States  because  of  the  removal,  if  the 
right  had  never  passed  fi'om  the  United  States^  had  never  vested  in  the 
grantee,  who  was  prohibited  to  remove? 

This  proviso  which  prohibited  removal  was  a  condition  the  observance 
of  which  consisted  in  not  doing,  in  not  removing;  which  could  not  create 
an  estate  in  the  Indian  family  by  the  observance  of  it,  but  could  do  no 
more  than  defeat  the  executed  vested  estate,  if  the  head  of  the  Indian 
family  did  not  abstain  from  the  prohibited  act.  These  distinctions  be- 
tween precedent  affirmative  conditions  to  be  fulfilled  to  create  an  estate  or 
make  it  take  effect,  and  subsequent  negative  conditions  by  non-observance, 
of  which  an  estate  executed  and  vested  may  be  defeated,  are  clearly  ex- 
plained by  Mr.  Justice  Doderidge,  in  Touchstone,  chap,  vi — of  a  Condi- 
tion— pp.  IIT,  118. 

The  distinction  attempted  by  the  Attorney  General  between  a  convey- 
ance and  a  compact,  between  a  covenant  to  grant,  upon  performance  of  a 
condition,  and  an  executed  estate  when  the  condition  had  been  performed, 
as  used  for  the  purpose  and  with  intent  to  deny  that  William  Reed  and 
his  family  had  a  vested  right  in  the  reservation  until  the  question  of  re- 
moval was  settled,  is  refuted  by  the  cases  of  Rutherford  vs.  Greene's  heirs, 
2  Wheat.,  196-206;  Ladiga  vs.  Roland  &  Co.,  2  Howard,  582-590;  Belk 
vs.  Love,  1  Devereaux  and  Battle,  65  to  76. 

In  the  case  of  Rutherford  vs.  Greene's  heirs,  the  legislature  of  North  Caro- 
lina, in  the  year  1782,  enacted  that  "  25,000  acres  of  land  shall  be  allotted 
for  and  given  to  Major  General  Nathaniel  Greene,  his  heirs,  and  assigns, 
within  the  bounds  of  the  lands  reserved  for  the  use  of  the  array,  to  he  laid 
off  by  the  aforesaid  commissioners;"  the  commissioners  thereafter  allotted 
the  land  to  General  Greene,  and  caused  a  survey  to  be  made  in  March, 
1783,  which  was  returned  to  the  office  11th  May,  1783.  Chief  Justice 
Marshall  and  the  whole  court  unanimously  determined  "that  the  act  of 
1782  vested  a  title  in  General  Greene  to  25,000  acres  of  land,  to  be  laid  off 
within  the  bounds  allotted  to  the  officers  and  soldiers,  and  that  the  survey 
made  in  March,  1783,  gave  precision  to  that  title,  and  attached  it  to  the 
land  surveyed." 

The  case  of  Ladiga  vs.  Roland  arose  under  the  treaty  with  the  Creek 
Indians,  by  which  the  United  States  engaged  to  survey  the  ceded  country 
as  soon  as  could  be  conveniently  done;  "  and  when  the  same  is  surveyed, 
to  allow  every  head  of  a  Creek  family  to  select  one-half  section  each;  a 


Mis.  No.  8.  ' 

census  of  these  persons  sAa//  be  taken  under  the  direction  of  the  President, 
and  the  selections  sJinll  be  made  so  as  to  include  the  improvements  of  each 
person  within  his  selection  if  it  can  be  so  made;  and  if  not,  then,"  (fcc. 
Ladiga  was  oiie  of  the  Creeks  included  in  the  census,  and  made  her  selec- 
tion, including  her  improvement.  The  Supreme  Court  of  the  United 
States  determined  that,  by  the  selection  according  to  the  treaty,  she  ''  not 
only  has  a  right  to  the  land  in  question  under  the  treaty,  but  one  wliich  it 
protects  and  guaranties  against  all  the  acts  which  have  been  done  to  her 
prejudice."     (2  Howard,  591.) 

The  case  of  Belk  vs.  Love  was  decided  by  the  supreme  court  of  North 
Carolina,  upon  solemn  argument  upon  one  ot  these  Cherokee  reservations, 
mentioned  in  the  3d  article  of  the  treaty  of  1S19.  That  article  declares, 
'•  it  is  agreed  and  understood  by  the  contracting  parties  that  a  reservation 
in  fee  simple  of  640  acres  square,  to  include  their  improvements,  and 
which  are  to  be  as  near  the  centre  thereof  as  may  be,  shall  be  made  to  each 
of  the  persons  whose  names  are  inscribed  on  the  certitied  list,  (fcc.  The 
reservations  are  made  on  the  condition  that  those  for  whom  they  are  in- 
tended shall  notify  in  writing  the  agent  for  the  Cherokee  nation,  within 
six  months  after  the  ratification  of  this  treaty,  that  it  is  their  intention  to 
continue  to  reside  permanently  on  the  land  reserved."  Yonah  was  one 
of  the  persons  alluded  to  in  that  article  of  the  treaty,  and  gave  the  notice 
in  writing  to  the  Cherokee  agent  as  required  by  the  treaty.  The  suprem.e 
court  of  North  Carolina  decided  that  upon  the  notice  so  given,  Yonah  took 
imder  this  agreement,  treaty,  compact,  and  understanding,  a  vested  interest, 
a  vested  estate  in  fee  simple,  and  that  the  sale  and  conveyance  by  Yonah 
to  Belk,  the  plaintiff  in  ejectment,  passed  the  title  to  him.  That  by  per- 
formance of  the  precedent  condition  of  giving  the  notice  to  the  Cherokee 
agent,  the  title  vested. 

These  decisions  prove  authoritatively,  clearly,  and  without  doubt,  that 
the  Attorney  General  is  himself  in  a  very  great  error  when  he  supposes 
that  the  Sth  article. of  the  treaty,  operating  upon  the  election  to  become 
citizens  of  the  United  States,  and  the  register  of  the  names  filsd  in  the  of- 
fice of  the  Cherokee  agent,  according  to  that  article,  did  not  amount  to  a 
conveyance,  did  not  vest  the  title  to  the  land  in  the  head  of  the  family  for 
life,  with  remainder  in  fee  to  the  children;  that  no  title  passed  to  them, 
because,  as  he  says,  "  it  is  a  very  great  error  to  regard  the  Sth  article  of 
the  treaty  as  a  conveyance  of  real  estate.  It  is  not  a  conveyance,  btit  a  com- 
pact. The  United  States  contracted  'to  give'  when  the  co;?a'2Yio?<5  were 
performed.  It  was  but  a  covenant  to  grant,  and  created  no  estate,  if  the 
head  of  the  family  removed  Irom  the  premises,  and  abandoned  the  same." 

Now  some  men  will  think,  and  indeed  most  men  will  believe,  that 
the  judges  of  the  supreme  court  of  North  Carolina,  and  all  the  seven 
judges  of  the  Supreme  Court  of  the  United  States  in  the  decision  in  J  SIT, 
with  Chief  Justice  Marshall  presiding,  and  the  seven  judges  of  the  Su- 
preme Court  of  the  United  States  in  the  decision  in  iS44,  Mr.  Justice 
Story  presiding,  (Chief  Justice  Taney  being  absent  because  of  severe  in- 
disposition,) are  more  to  be  relied  on  as  expounders  of  treaties,  convey- 
ances, grants,  and  conditions,  than  Mr.  Attoiney  General  Clitibrd. 

The  Attorney  General  Clifford's  attention,  was  called  to  the  case  of 
Ladiga  vs.  Roland,  and  to  other  cases,  by  the  counsel  for  Mis.  Reed  and 
her  children,  to  show  that  the  reservations  described  in  the  oth  article  of 
the  treaty  of  1S17  became  vested  estates  in  the  children  "  when  the  revSer- 


Mis.  No.  8. 

vee  had  registered  his  name  with  the  Cherokee  agent."  But  the  Attorney 
General  could  not  see  the  similarity  in  the  cases  cited  to  the  case  of  Wm. 
Reed's  reservation,  and  the  bearing  which  the  principles  in  the  adjudged 
cases  so  cited  had  upon  the  case  of  the  children  of  Wm.  Reed  and  his  In- 
dian wife  Nancy.  Pie  could  not  see  that  the  principles  established  in  those 
cases,  if  applied  to  reservations  under  the  treaty  of  1S17,  would  prove  that 
upon  the  registration  with  the  Cherokee  agent,  according  to  the  8th  article 
of  the  treaty  of  1817,  the -estates  became  vested  in  the  reservees  presently, 
and  that  they  did  not  remain  in  abeyance  thenceforth,  until  it  should  be 
certainly  known  whether  or  not  the  heads  of  the  families  would  observe 
the  subsequent  negative  condition,  of  not  removing  from  the  premises  nor 
abandoning  them;  but  would  well  and  truly  keep  and  observe  the  said 
condition,  by  dying  on  the  premises. 

He  is  dead  to  the  force  of  truth  who  has  no  desire  to  perceive  it,  who 
has  no  mind  to  comprehend  it,  and  who  is  not  at  liberty  to  embrace  it. 

The  Attorney  General  says  that  the  eighth  article  '•  was  but  an  execu- 
tory contract,  which  the  United  States  were  bound  to  fulfil  when  the  con- 
ditiojis  upon  which  it  was  based  were  performed.  The  condition  was,  that 
the  head  of  the  family  should  not  remove." 

Now  if  that  be  a  condition  to  be  performed  before  the  head  of  the  family 
could  have  a  vested  estate  in  himself,  then,  whilst  he  M^as  alive  he  might 
remove  and  abandon  the  premises ;  and  therefore,  until  he  died  without 
having  removed,  the  executory  contract  was  not  performed  on  the  part  of 
the  head  of  the  family,  and  so  the  United  States  were  not  bound  until 
then  to  fulfil  their  part  of  the  executory  contract;  and  as  no  life  estate  v/as 
vested  in  the  head  of  the  family  during  his  life,  no  remainder  could  vest 
in  the  children,  and  so  the  promise  to  the  children  and  the  wife  amounts 
to  nothing  but  a  delusion. 

If  this  idea  of  the  condition  "  that  the  head  of  the  family  should  not  re- 
move" must  be  performed  before  any  estate  can  take  effect,  and  vest  either 
in  the  head  of  the  Indian  family  for  his  life,  or  in  the  childi^n  in  remain- 
der; and  if  it  be  also  true  that  this  condition  that  the  head  of  the  family 
should  not  remove  was  not  limited  in  its  duration  to  the  period  in  which 
the  census  v/a-s  expected  to  have  been  taken,  and  did  not  cease  when  the 
census  v/as  dispensed  with  by  the  satisfactory  adjustment  in  lieu  of  the 
census,  but  continued  to  operate  as  prohibiting  a  removal  during  the  life  of 
the  head  of  the  family,  and  so  no  estate  was  vested  until  that  prohibitory 
condition  should  be  performed  and  fulfilled,  then  indeed  it  would  thence 
follow  as  a  necessary  consequence  that  the  last  proviso  in  this  8th  article, 
*'  that  the  land  which  may  be  reserved  under  this  article  be  deducted 
from  the  amount  which  has  been  ceded  under  the  first  and  second  articles 
of  this  treaty,"  could  not  be  executed  until  all  the  heads  of  families  so  re- 
gistered for  reservations  were  all  dead,  or  had  forfeited  the  reservations  by 
removal;  and  so  the  fifth  article  relative  to  the  lands  to  be  given  by  the 
United  States  in  exchange,  acre  for  acre,  must  have  remained  unexecuted 
and  suspended,  to  await  such  contingencies  relative  to  the  deduction  of  land 
which  may  be  reserved. 

Such  absurd  consequence  would  result  necessarily  from  the  doctrine  of 
the  Attorney  General,  that  "  it  was  but  a  covenant  to  give  M^hen  the  condi- 
tions were  performed,"  "  and  no  estate  was  created  if  the  head  of  the  fam- 
ily removed  from  the  premises  and  abandoned  the  same." 

The  radical  error  in  the  Attorney  General's  opinion  consists  in  not  un- 


Mis.  No,  8.  69 

derstanding  the  removal  prohibited  as  being  a  removal  to  the  Cherokee  na- 
tion west  on  the  Arkansas,  and  the  prohibition  as  of  temporary  and  limited 
duration  connected  with  the  census  alluded  to  in  article  3,  and  as  ceasing 
as  soon  as  the  proportional  partition  between  the  Cherokees  east  and  the 
Cherokees  west  was  adjusted  according  to  the  terms  of  the  treaty  of  1819. 

Your  memorialists  most  respectfully  suggest,  and  protest,  that  an  Attorney 
General  of  the  United  States  is  not  a  proper  commissioner  under  the  17th 
article  of  the  treaty  of  New  Echota.  His  official  duties  as  the  retained  law 
officer,  to  argue  and  defend  for  the  government,  begets  habits  of  thinking 
in  favor  of  the  government  and  against  all  claims  upon  the  treasury,  which 
render  him  unfit  for  an  arbitrator  and  commissioner  under  that  treaty. 
From  his  position  as  a  member  of  the  cabinet,  of  which  the  Secretary  of 
War  is  also  a  member,  whose  office  and  seeming  authority  haie  been  used  in 
all  the  erroneous  instructions  to  the  commissioners,  and  from  his  associa- 
tion officially  with  the  accounting  officers  of  the  several  departments,  liable, 
through  the  heads  of  the  departments,  to  be  called  on  for  his  opinions  upon 
matters  to  the  heads  of  the  departments  referred  by  the  various  subordinate 
officers^  and  especially  referred  by  the  accounting  officers,  whose  code  of- 
ethics  and  known  rule  of  action  in  modern  times  used  and  practised 
(with  some  few  honorable  exceptions)  requires  all  claims  against  the  gov- 
ernment to  be  rejected,  if  possibly  they  may,  in  whole  or  in  part,  by  formal, 
technical,  finical  objections — the  Attorney  General,  by  such  his  position 
and  associations,  is  liable  to  imbibe  the  esprit  du  corps. 

That  the  Attorney  General  shall  be  a  commissioner  under  the  treaty  ex 
officio,  and  solely  by  his  commission  of  Attorney  General,  held  at  the  plea- 
sure of  the  President,  does  not  comport  with  the  sense  and  spirit  of  the 
treaty.  An  imipire  between  dissenting  commissioners  is  not  an  office  pro- 
vided for  by  the  treaty  of  New  Echota.  It  is  (as  your  memorialists  are  ad- 
vised and  do  most  respectfully  suggest)  an  unadvised  interpolation  of  the 
,  treaty;  a  corruption  of  the  text;  by  which  the  just  rights  of  your  memorial- 
ists have  been  cast  into  the  whirlpool  of  Executive  influence,  and  lost  in 
its  vast  profundity. 

It  is  true  that  four  boards  of  commissioners  have  been  appointed  under 
the  treaty  of  1835-'36.  That  four  boards  have  been  appointed;  that  such 
long  vacations  between  the  breaking  up  of  the  sittings  of  this  and  that 
board  and  the  sittings  of  their  successors,  and  such  long  vacations  taken 
by  the  last  board;  that  so  many  interruptions  to  the  sittings  of  the  court  of 
commissioners  have  happened,  are  matters  in  nowise  attributable  to  the 
Cherokees.  They  had  no  art  nor  part  in  the  appointment  of  the  commis- 
sioners, nor  in  defining  the  tenures  of  office  expressed  in  their  commis- 
sions, nor  in  the  breakmg  up  of  their  sittings.  Those  interruptions  and 
delays  have  been  grievous  to  the  Cherokees,  and  in  violation  of  the  spirit 
of  the  treaty  of  New  Echota. 

Your  memorialists  feel  and  know  that  impartial  justice,  according  to  the 
terms  of  the  treaties,  has  not  been  administered  to  them.  A  powerful  in- 
fluence against  them  has  been  constantly  exerted  through  the  instrumen- 
tality of  the  office  of  Indian  affairs,  acting  in  the  name  and  authority  of 
the  War  Department.  Witness  the  various  erroneous  instructions  issued  to 
every  board  of  commissioners,  yet  not  made  known  to  the  claimants,  but 
concealed  until  after  the  mischiefs  of  such  secret  instructions  had  been 
effected;  witness  the  decisions  so  palpably  wrong  which  have  foHowed; 
witness  the  refusal  of  the  Commissioner  of  Indian  Affairs  to  sufier  the 


70  Mis.  No.  8. 

counsel  of  the  claimants  to  inspect  the  records  of  the  decisions,  and  the 
causes  assigned  for  refusal;  witness  the  tenure  of  office  expressed  in  all 
the  ■cmmissions  under  the  treaty. 

Your  me  Borialists  have  been  greatly  disappointed  because  of  the  lack 
of  independence,  qualifications,  and  fitness  of  the  majority  of  the  commis- 
sioners who  have  from  time  to  time  been  appointed.  The  duties  and  func- 
tions of  adjudicating  between  the  government  of  the  United  States,  its  ma- 
jesty, power,  wealth,  patronage,  and  influence,  of  the  orie  party,  and  the 
down-stricken  Cherokees  of  the  other  party,  required  and  merited  men  of 
a  high  order  of  intellect  and  acquirements,  experience,  weight  of  character, 
and  independence,  who  should  have  scorned  the  proffered  leading-strings 
of  the  Commissioner  of  Indian  Affairs  and  of  the  Department  of  War. 

Your  memorialists  are  sensible  that  these,  their  complaints,  have  been 
already  protracted  to  very  great  length;  but  the  errors  of  the  various  in- 
structions secretly  issued  from  the  office  of  Indian  affairs  required  answers 
and  refutations.  The  grievances  of  your  memoriaUsts  are  great,  running 
through  a  long  series  of  years  of  sufferings  and  endurance,  in  which  their 
•oppressions  have  been  numberless,  covering  them  like  the  rising  flood  and 
pressing  them  like  the  weight  of  waters  down.  Although  the  Congress, 
by  act  of  2d  July,  1836,  appropriated  $4,-500,000,  the  amount  stipulated  to 
be  paid  for  the  lands  ceded  in  the  first  article  of  the  treaty  of  1835,  as  re- 
duced by  the  sum  of  ,'$500,000,  mentioned  in  the  second  article,  and  did, 
in  the  same  act,  appropriate  $600,000  for  removals  and  spoliations,  accord- 
ing to  the  third  article  of  the  supplement  of  1836;  and  did  also,  by  act  of 
12th  June,  I S38,  appropriate  $1,047,067  in  addition,  "  for  all  the  objects 
in  the  said  third  article  of  the  supplement;"  yet,  no  part  of  the  sum  of 
four  million  five  hundred  thousand  dollars  has  as  yet  been  distributed  per 
capita  among  the  Cherokees,  according  to  the  15th  article  of  the  said  treaty 
of  1835;  and  by  means  of  the  interruptions  to  the  commission  stipulated 
in  the  17th  article  of  that  treaty,  the  claims  for  spoliations,  damages,  com- 
pensations for  reservations  and  pre  emptions,  &c.,  as  stipulated  in  the  va- 
rious original  and  supplemental  articles  of  said  treaty  of  lS35-'36,  have 
not  been  fairly  and  impartially  adjudicated  and  paid,  but  have  been  delayed, 
obstructed,  and  frustrated  by  the  means  and  wrongs  before  alluded  to,  but 
yet  not  fully  told,  long  as  this  memorial  may  seem  to  those  who  have  not 
felt  nor  been  conversant  with  the  wrongs  which  have  been  done  to  the 
Cherokees,  contrary  to  the  faith  of  the  treaties. 

Your  memorialists,  therefore,  pray  that  the  Congress  of  the  United 
States  will  be  pleased  to  cause  the  instructions  which  have  been  from  time 
to  time  issued  from  the  War  Department  and  office  of  Indian  affairs,  to  the 
commissioners  appointed  under  the  17th  article  of  the  said  treaty  of  New 
Echota,  to  be  called  for  and  examined  by  a  committee,  with  power  to  send 
for  persons  and  papers,  or  in  such  manner  as  to  your  honorable  body  shall 
seem  fit: 

T.iat  the  original  records  of  the  decisions  of  the  said  commissioners  may 
■  be  called  for,  with  the  causes  assigned  by  the  Commissioner  of  Indian  Af- 
fairs for  refusing  to  permit  the  records  of  those  decisions  to  be  inspected  by 
the  counsel  tor  the  claimants;  and  that  the  decisions  may  be  examined  by 
a-coiimittee,  and  by  the  counsel  for  the  claimants: 

Tiiat  a  new  board  of  commissioners  under  the  said  seventeenth  article 
of  the  treaty  may  be  instituted;  that  the  tenure  of  office  of  said  commis- 
sioners may  comport  with  said  treaty  and  the  constitution  of  the  Unite^d 


Mis.  No.  8.  71 

States,  and  not  be  dependant  upon  the  will  and  pleasure  of  the  President; 
that  said  board  of  commissioners  be  untrammelled  by  the  instructions 
aforementioned  which  have  been  issued  from  the  Department  of  War  and 
office  of  Indian  affairs,  and  free  to  hear  applications  for  new  trials  and  re- 
hearings  in  cases  which  have  been  heretofore  decided  adve/sely  to  the 
claimants;  and  to  grant  the  new  trials  and  rehearings,  if  to  the  board  of 
commissioners  it  shall  seem,  in  their  discretion,  necessary  and  proper  to 
the  attainment  of  justice  and  the  right  of  the  case;  so  that  the  faith  of  the 
treaties  and  the  public  faith  and  honor  of  the  government  of  the  United 
States  may  be  vindicated  and  preserved  inviolate. 

And,  finally,  your  memorialists  most  respectfully  and  earnestly  invoke 
the  attention  of  the  Congress  of  the  United  States  to  the  wrongs  and  griev- 
ances hereinbefore  mentioned,  and  pray  for  such  relief  and  redress  as  to 
the  wisdom  and  justice  of  the  Congress  shall  seem  apt  and  proper. 

December  21,  1847. 

PRESTON  STARRITT, 
jPor  himself  and  divers  other  claimants. 

JOHN  F.  GILLESPY, 

Attorney  and  agent  of  Thomas  Davis,  son  of  Abraham  Davis, 
Philips^   children,    I-yos-Tosh^s    children,    Oo-loocha^s    son 
Ahama,  Betsy  Walker,  and  of  forty  other  Cherokee  claimants. 

JOHNSON  K.  ROGERS, 

Fhr  himself,  and  as  attorney  in  fact  for  other  Cherokee  claimants. 

'  ANDREW  TAYLOR, 

By  his  attorney,  P.  Starritt. 


m.. 


■?V: 


- ;-  y-  >^ 


>— .  ■/ 


